Political and Constitutional Reform CommitteeWritten evidence submitted by London Councils

Introduction

1. Following the oral evidence session with Mayor Jules Pipe in December, London Councils welcomes the opportunity to provide further evidence, in particular on what might need to be codified and how codification might be achieved.

2. As a joint committee of all of the London boroughs, London Councils is interested in how codification can achieve practical change in terms of the relationship between central and local government. Writing things down does not help local government if it simply reproduces much of the current arrangements. The Council of Europe’s European Charter of Local Self-Government signed by the previous Government contains a number of potentially significant provisions and was supposed to commit all Departments. It has not, however, been incorporated into law and there has been very limited progress on many aspects of its provisions. It can hardly be said to figure prominently in the policy development process.

3. Incrementally, there is an argument that simply having a clearer and more stable framework would offer a defensive bulwark against what councils see as encroachments by central Government. London Councils, however, considers that codification needs to be more ambitious. It should develop a sense of the role of local government. It should also achieve practical and substantive change by tying national and local Government into a set of expectations which have some teeth and from which a broader cultural shift can develop.

4. So in addition to what might need to be codified and how it might be done, the third leg of an effective proposition is where responsibility rests for holding central and local government to account for acting in accordance with a codified statement of the status and role of local government.

5. Accordingly, this evidence is arranged in three brief sections:

(a)Clarifying what is to be codified and why—covering both greater constitutional autonomy and associated powers and a set of expectations or default settings reflecting these principles.

(b)Embedding a statement of principles through statute with associated provisions to prevent departure from it without good cause and to allow proper scrutiny which can be enforced through Parliamentary mechanisms.

(c)Entrenching codification through new Parliamentary arrangements which would be responsible for developing the statement of principles and then for providing oversight on behalf of Parliament as a whole.

6. Working through the implications of such a shift will require wider change in culture, relationships and behaviour and might fruitfully be the subject of further discussions and potentially some more formal agreement between central and local government. That issue is not, however, considered further in this evidence.

What needs to be codified—clarifying the status and role of local government

7. Codification should not start by setting out specific functional responsibilities—these have changed and will change again and a line by line account based on specific responsibilities would likely degenerate into tedious trench warfare. Such codification is also alien to most British politicians and should be recognised as such.

8. What it could do, however, is to establish:

the broad status of local government and the general expectations about its role within a wider system;

an expectation that local government is the default option for activity below national level (whilst allowing for Government to determine other arrangements where there is a good case); and

an expectation that local government is funded commensurately to fulfil its role.

9. One of the necessary conditions for being able to operate in this way is to deal with the problems that English local government has always had in respect of ultra vires activity. In principle a power of general competence could remove that concern and more clearly allow authorities to move onto new ground. However, the general power proposed by the Government falls well short of what is needed. This is partly because of restrictions which are on the face of the Localism Bill. But it is particularly telling that the operation of the power is still, under the provisions of the Bill, to be heavily regulated by national government. Whilst the Secretary of State is able to continue to intervene in all sorts of activity that councils should simply be able to get on with, the general competence that is needed is still far from being achieved.

10. What is needed now is much clearer recognition that local government has the locus to take responsibility for governing at local level and that there is an expectation, shared with national government, that it should do so and that this requires a change in the way in which national government has operated in the past. Some of the principles in the existing Central Local Concordat are useful here, particularly the acceptance that local government has a democratic mandate just like central government and that this should accord it a different status from other bodies at sub-national level. Indeed the thrust of this evidence is that national and local need to be seen as two elements of a single wider democratic system in England within which they both have a role and through which power can be devolved.

11. In our view, an expression of the status and role of local government should start from the following principles:

(a)a general presumption that those elected to represent an area should be able to do what is needed for the interests of the area and should be trusted to operate with the fullest possible discretion

(b)decisions should be made at lowest possible democratic level, closest to the people who will be affected by the decision.

12. In terms of detail, we would then expect a statement of principles to cover the following:

establish the status of local authorities as autonomous and locally accountable institutions of government (building on the two principles set out above) with a presumption that they will do what is needed in the interests of their communities;

express the role of councils not in terms of specific functions but in promoting and safeguarding the interests of their area;

an expectation that local government should be the first option for exercising any new sub-national responsibilities (there could also be a duty to devolve);

recognition of the role and responsibilities of councillors to make decisions and to govern in the interests of their areas;

setting out community leadership and powers in relation to other public bodies at local level;

assuming self organisation in terms of decision making, management and delegation;

resources commensurate to role and function (going beyond the “new burdens” doctrine) which come in large part from sources over which local authorities should be able to exercise a considerable degree of control (in terms of being able to determine the rate of local taxes and charges) and which are buoyant in character; and

establishing that regulatory and other supervisory action by central government should be proportionate to the specific purposes concerned.

How can codification be achieved?

13. We have referred to a statement of principles by which we mean a statement setting out the worked through version of the elements set out above.

14. To date attempts at writing such statements have either been imported from external sources (ie Europe) or developed between the Executive and representatives of local government. We think a new approach is needed and that a new joint committee of both Houses which we propose in the following section should take on responsibility for the development of this statement drawing on the existing documents and the many good drafts that have been developed by academics and think tanks. London Councils would be happy to expand on the sketch set out above as a contribution to this process. This would give clear effect to the provisions in the European Charter that the principles of local self-government should be recognised in domestic legislation.

15. On this basis, the statement of principles would be developed by Parliament as a whole to set out the basis of the “constitutional” relationship between central and local government in England (given that the devolution settlements in the other parts of the United Kingdom would continue to apply). The Executive would then bring the statement into force through the normal legislative route.

16. A Bill including the statement as a schedule should also make provision for:

(a)a requirement for Government to act in accordance with the provisions of the statement. This would establish a new expectation applicable to all new major policy, funding and legislative arrangements and any departure would require explanation;

(b)a requirement for all new primary legislation to have a “statement of compatibility” with the terms of the central-local statement (analogous in some ways with the statements required in relation to compliance with the Human Rights Act) which would be signed off by the relevant Minister; and

(c)a requirement to involve local government in the development of government action or proposals which would affect its status and role as set out in the statement of principles.

17. In combination these provisions could significantly shift the rules of the game in respect of major decisions which impact on local government. The arrangements described in the next section would provide the necessary oversight to give them teeth.

Entrenching: Parliamentary Oversight

18. In its report on the balance of power, the Communities and Local Government Committee in the previous Parliament set out a number of proposals which in the view of London Councils can be built upon to provide effective oversight.

19. The crucial element in providing for Parliamentary oversight is the establishment of a new Joint Committee of both Houses which would take on a number of roles in relation to the new statement and would act as its guardian. This should start from the basis that the statement expresses the inter-relationship between the central and local elements of the wider democratic system in England. That focus on the wider democratic system is fundamental. Parliament, as the ultimate guarantor of the sovereignty of the people, would be the right institution to take on such a constitutional function.

20. This new Standing Local and National Democracy Committee would, inter alia:

draw up the statement of principles (as described above);

issue specific reports on significant policy issues and proposals that affect matters covered by the statement of principles;

Consider legislation which it considered might have a bearing on the statement of principles;

interrogate cases where the Executive appears to be in breach or potential breach of the statement and the requirements set out above and be able to require an explanation from Ministers; and

report annually on the overall state of central local relations considering the impact of legislative and other changes.

21. The Committee would also act as a lock on the statement of principles. As a creature of statute the statement would be open to amendment. However, with the establishment of the Committee and its role in the development of the statement, there would be a clear expectation that there should be full deliberation by the Committee before any significant change is made to these fundamental principles. This should act as a significant brake.

22. That brake could be given considerably greater formality by adopting provisions modelled on those being developed for the Fixed Term Parliaments Bill. Given that the statement of principles would have been developed by a committee of both Houses, the Bill putting the statement into statute could also require that a two thirds majority in both Houses would be required in order to amend it. This would be a substantive entrenching of the status and role of local government which accords it a status which is as close to constitutional as the system of Parliamentary sovereignty permits.

23. In the centenary of the Parliament Act a further constitutional safeguard might be appropriate. Section 2 of the Act could be amended to permit the House of Lords to reject legislation sent from the House of Commons more than two times in specific circumstances. These circumstances would only be triggered when the Standing Local and National Democracy Committee, having scrutinised legislation before Parliament concluded, by a two thirds majority, that the legislation would significantly damage the statement of principles.

Moving Forward

24. Progress could be made quickly were arrangements along these lines to be proposed by this Committee and accepted by the government and Parliament.

25. The crucial first step would be the establishment of the Standing Local and National Democracy Committee which should aim to become a central feature of deliberations about the wider democratic settlement in England. There are many members of both Houses who could bring their experience to bear on these questions including eminent former civil servants, judges, former local government leaders, former ministers and constitutional experts.

26. The work initiated by the new Committee on the statement of principles would provide an initial focus to generate momentum and could be accompanied by a commitment from the Executive to legislate at the appropriate time.

27. The Committee could then start to develop a wider work programme reflecting the current business of the Houses and the policy developments underway in Government.

Conclusion

28. Parliamentary select committees have on a number of occasions identified the need for or possible benefits of embedding some form of wider constitutional settlement covering central and local government but Government has always backed off. The issues do not, however, go away.

29. We have set out how incorporation of a statement of principles developed by Parliament and tailored to the specific conditions and requirements of central-local relations in England could be achieved. In our view there is an opportunity now to make the status and role of local government in England clear once and for all as part of a new more localist settlement and that it is for Parliament, not just the government, to make it happen and to provide the necessary oversight to give it teeth.

February 2011

Prepared 28th January 2013