Political and Constitutional Reform CommitteeWritten evidence submitted by Emeritus Professor George Jones and Emeritus Professor John Stewart

1. The report of the Communities and Local Government [CLG] select committee on The Balance of Power: Central and Local Government, published in May 2009 (HC33–1), concluded “The power to govern in England remains too heavily centralised to be efficient or effective. Put simply, the balance of power between central and local government in England is currently in need of a tilt towards localities…Not only should there be a shift in the balance of power, it should be given a degree of permanency.” [Paragraphs 146 and 149]. But the then Government’s response [Cm 7712] was weak—leaving the issue for further consultation, dialogue and debate.

2. We applaud the Political and Constitutional Reform select committee for undertaking this inquiry into the prospects for codifying the relationship between central and local government and hope it will recommend a way to achieve a considerable “degree of permanency”. Since the relationship between central and local government is between two major elements of governance, it can truly be called a constitutional relationship.

3. In most countries in Europe local government is a recognised part of the constitution, which necessarily shapes central-local government relations. Local authorities in the United Kingdom as elected bodies with powers of taxation and a wide range of functions should be recognised as clearly part of the constitution and treated as such in the working of the system of government and in their relationship with central government and the devolved bodies.

4. The need for a “degree of permanency”, indeed for a constitutional settlement, derives from problems in the relationship which have arisen because central government has not had proper regard for the role of local government in the constitutional arrangements of the country and for its contribution to the democratic basis of government. The relationship has not reflected the respect for the importance of local government one would expect from central government towards a constitutional institution. Too often the relationship has reflected assumptions by central government of the need for command and control of what it has perceived as mere agents of central government rather than as genuine local government.

5. This attitude has been reflected in

Resort to legislation and regulation as the first step in tackling policy problems;

Prescription not merely in principle but in detail;

Proliferation of targets, performance measures and reporting requirements;

Growth of external inspections as judgments on individual local authorities, almost replacing the judgment of the local electorate;

Centralised financial arrangements that have undermined local accountability;

Transfer of functions from local elected control to control by appointed boards; and

Destabilisation of the legislative framework with continuing statutory changes in the structure, internal organisation and finance that have been imposed on local government.

6. The total effect of these developments has changed the constitutional relationship, without it being explicitly recognised, as each change has been considered on its specific merits without concern for the cumulative effect on the working of the relationship between central and local government. Some, but not all, of these developments are being reduced by the Government, but could easily be reintroduced by future governments, or even by the present government, in the absence of constitutional protection, or in the absence within the working of government of the capacity to consider the constitutional implications of such developments.

7. Two documents adopted by the Labour Government, the Central-Local Concordat and the European Charter of Local Self-Government, set out the conditions for effective local government and expressed certain principles that should govern central-local government relations. They have had little impact in part because of weaknesses in the documents, but also because the documents are little known within central government and because they have no statutory authority. This ineffectiveness was illustrated by the replies of two ministers to questions by the Communities and Local Government Committee on the Balance of Power, which showed they had no understanding or knowledge about the Concordat.

8. There is a need for a statutory statement of principles on the constitutional position of local government. They should include recognition that:

Local government is part of the constitution, as in other countries;

The primary role of local government is the government of local communities, enabling their well-being;

Local government needs the powers and resources to carry out that primary role;

The primary accountability of local authorities is to their local citizens;

Local authorities require powers to ensure the accountability of local appointed boards to local people;

Central government should respect the constitutional position of local authorities, taking full account of their views on any legislation or policy bearing on them, and limiting prescription to where there is a clear national interest.

9. This statutory recognition of the role of local government should require central government to make clear whether any proposed legislation or regulation is consistent with the statutory statement and why it is proposing any action inconsistent with that statement. There should be a Joint Committee of both Houses that should consider and report on any proposals it judged inconsistent with the principles, and should review the cumulative effect of changes, reporting annually on the tendencies implicit in central-local relations. Such monitoring of bills, white papers and departmental activities would expose whether central government was acting in accord with the provisions of the constitutional statute. It would make explicit for Parliament and the public if there were a breach of the provisions, thus enhancing the accountability of the Government to Parliament.

10. The need for a statute is shown by the quotation in the Political and Constitutional Reform Committee’s paper on Issues and Questions from Professor Vernon Bogdanor who told the CLG Committee of 2009 that “the main barriers to a new localism are not constitutional, but political and cultural”. We agree about the importance of political will and cultural change in altering the attitude of central government, both ministers and civil servants, towards local government.

11. A major effort is required to change the culture and attitudes of central government. Codifying a desirable relationship between central and local government in the form of a statute and setting up a joint committee of the two Houses of Parliament to monitor the activities of departments towards local government would shake the prevalent culture of Whitehall, ensuring that specific proposals from the Executive comply with the constitutional codification embodied in a statutory framework.

12. The main method to alter the attitudes of ministers and civil servants is to make them work in a new way where local government is treated as an equal partner in governing and not as a section of the department. New constitutional arrangements expressed in a statute are essential—to permeate deep into departments from ministers and top officials. The required shift in the balance of power between central and local government can be achieved only by such radical change.

The Committee’s Questions

Our answers to many of the Committee’s questions are contained in what has been written above, but it may be helpful to give a short response to each question.

Question 1. (a) Yes. The relationship between central and local government should be codified and given a considerable “degree of permanency”, as we propose above. (b) No. The relationship between central and local government is so unbalanced and damaging to our system of government that it requires focussed attention and urgent action. The danger of considering wider constitutional codification is that attention will be diverted from dealing with central-local government relationships to far more complex and controversial issues about a written constitution. But if there is to be consideration of a wider constitutional codification, local government should be involved in that process, since it is part of the Constitution.

Question 2. Local government should not be seen as a part of central government: it has its own constitutional status. But it is bound by Parliamentary legislation which should be confined to where there is a clear national interest.

Question 3. The status and primary role of local government cannot be firmly entrenched, but they can be given a “degree of permanency”, as set out above. This statutory codification would inhibit changes that would undermine that status or prevent local authorities discharging their primary responsibility effectively. The monitoring by the Joint Committee would not entrench the relationship but ensure that any significant changes in the balance were made explicitly with an awareness of their consequences.

Question 4. Local authority’s primary accountability is to local citizens through the elected council. They are not accountable to central government, but to the law as enacted by Parliament.

Question 5. Up to a point. The devolution settlement may be a guide but not necessarily a model. The relationship between central and local government is a topic in its own right. Its elements should be examined directly and not by analogy, or metaphor or simile with other governmental relationships.

Question 6. The Political and Constitutional Reform Committee may find it useful to explore the constitutional settlements between central and local government in other countries, since such comparative analysis can sharpen understanding of ones own system, and raise aspects to copy or avoid. But such investigation of the arrangements in other countries should not distract attention from the imbalance of the relationship in this country. Inquiry into how other countries operate takes time, and demands resources and appreciation of the historical and cultural contexts of those countries that may make their practices inappropriate for adoption elsewhere. The Committee should focus its attention on tackling the imbalance in central-local government relationship in this country.

If the Committee, however, decides to undertake a comparative inquiry, then the main provisions can be found in the constitutions of the various countries, although there can be legislation that changes the constitutional relationship, for example in France in its decentralisation legislation. Details of the constitutional provisions in Western Europe are contained in Appendix B covering “Constitutional Regulation of Municipal Affairs” of Angelika Vetter’s Local Politics: A Resource for Democracy in Western Europe, Lexington Books (2007).

Question 7. The Concordat and the Charter are too general, too limited, and with qualifications at critical points, to give adequate constitutional protection for local government. Even if the documents were stronger, they lack statutory authority and appear to have been largely ignored by central-government departments. The value of these documents is they are a useful starting point for devising the elements that should be in an Act of Parliament.

Question 8. It would be important in giving statutory expression to the primary role of local government. We hope the Committee will explore why the Government intends to use the phrase “general power of competence” rather than the long-established expression “power of general competence”. Does the former imply a diminished legal scope for local government compared with the latter?

Conclusion

In the relationship between central and local government there is an imbalance.

It has tipped too much to central government because of the centralisation of the last 30 years that has eroded local government’s powers, discretion and financial responsibility.

There is a need to shift the balance to decentralisation to elected general-purpose local government.

This rebalancing should be protected by the enactment of a statutory constitutional settlement, and underpinned by a local-government financial system that ensures local authorities obtain the lion’s share of their income from taxes on their local voters.

This change in the rules of the game will not be achieved by incremental tinkering, but by a radical change, which requires a cross-party consensus.

The Political and Constitutional Reform select committee, as a cross-party committee, is well placed to take up the cause of revitalising local government. We hope it will do so, by advocating that the rebalancing of the relationship between central and local government more in favour of local government should be given a “degree of permanency” in a statute and protected by a Joint Committee of Parliament.

November 2010

Prepared 28th January 2013