Political and Constitutional Reform CommitteeWritten evidence submitted by Mark Ryan, Coventry University

1. My name is Mark Ryan and I am a Senior Lecturer in Constitutional and Administrative Law at Coventry University and I have a particular interest in constitutional reform. My submission, however, is made in my own personal capacity and indicates my personal observations on the prospect of the codification of central-local government relations. It in no way reflects the views of my employers (Coventry University).

2. Question 1: The relationship between central and local government should be codified, however, this should ideally take place in a much broader constitutional context (ie as an integral part of a formal codified constitution). Constitutional reform should, after all, be undertaken with a grand overall strategic vision in mind, rather than as piecemeal and isolated elements of reform. It is rather unfortunate that the latter approach has characterised constitutional reform in this country.

3. Question 2: Local government should be empowered and given more independence from central government than exists at present. It is clear that the constitutional arrangements of the United Kingdom are far too centralised with excessive power being concentrated in central government to the detriment of its local counterpart. In particular, local government needs more financial autonomy and less intervention/supervision from the centre. Furthermore, it should enjoy more freedom to make delegated legislation—as in the final analysis, any legislative measure which is ultra vires or an abuse of power is subject to judicial review in the courts. The point must be made, however, that any form of codification must include a rebalancing of power between central and local government, otherwise the codification would merely reflect the existing imbalance of power.

4. Question 3: In the United Kingdom local government currently lacks “constitutional status” as it is effectively at the mercy of central government (albeit operating through the conduit of Parliament, which of course, typically it dominates). In contrast, in other countries the constitutional principle of local government is given special constitutional protection by being enshrined in a formal codified constitutional document. The traditional view in the United Kingdom is of course that the legislative supremacy of Parliament prevents the legal entrenchment of legislation. Nevertheless, if central-local government relations were explicitly embedded in primary legislation, it could be argued that such a measure would be deemed to have “constitutional status” (in line with the—albeit obiter—formulation of LJ Laws in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), para 62) and therefore not be subject to implied repeal. In any event, any Act of Parliament which set out the agreed framework of relations between central and local government would be politically entrenched and so ring-fenced from subsequent repeal at the behest of central government. In these circumstances, in a political and morally constitutionally sense, it would no doubt prove difficult to alter central-local government relations in a way which downgraded the position of the latter.

5. Question 4: Any codification of central–local government relations which enhanced the powers and responsibilities of local government undoubtedly would reinvigorate local government and inject it with both dynamism and a new found confidence. In short, enhancing the powers of local government would make it much less constitutionally, politically and legally inhibited than at present. This in turn would increase public participation and interest in matters of local authorities, thereby leading to greater political and electoral accountability of this tier of government. The following cautionary point, however, has to be made in this context as one of the legal consequences of codifying central-local government relations in statutory form may be to result in “juridifying” relations between them. In brief, the process of “juridification” involves the courts being used to police the boundaries between the respective powers and responsibilities of the two tiers of government.

6. Question 5: The devolution of power to Scotland, Wales and Northern Ireland demonstrates that once decentralisation of power has taken root, it is difficult politically to reverse. In addition, these models serve to show that devolution is not a static event; rather it is a rolling process whereby further powers and responsibilities can be periodically rolled out and devolved. The lesson for local government may be, therefore, that the codification of central-local government relations would not represent (necessarily) the high watermark of local government powers—as built into any formal codified agreement could be the possibility of further powers being decentralised to local government at a later date.

7. Question 6: It is arguable that in practice given the United Kingdom’s peculiar (almost unique) constitutional arrangements, comparisons with specific aspects of codified formal constitutions in other countries may prove to be of somewhat limited value.

8. Question 8: A general power of competence as detailed in the 2011 Localism Bill is to be welcomed. This form of empowerment should energise local government which undoubtedly would act in a more proactive manner for the benefit of the local community. In addition, from a legal and constitutional perspective it would involve an interesting shift from local authorities acting rather prescriptively on the basis of narrowly conferred legal authority, to acting in a much more proactive and liberating fashion (providing that no positive law had been breached). It may be the case, however, that this could lead to tension with central government which may try to assert even more supervision over the actions of local authorities. In addition, whether this general power of competence would result in more court actions being taken against local authorities by individuals would remain to be seen.

January 2011

Prepared 28th January 2013