Ian Adderley asks if it is time to give local government constitutional footing
Local government has been a political football kicked from pillar to post for at least the last 50 years. It is fair to say it has had a rocky relationship with central governments (of all political persuasions, but I believe it has suffered the most under the Conservatives) both under Thatcher and her heir Cameron, with the help of his favourite chum Eric Pickles. However, leaving party-politics to one side for now, the key issue is whether local government should be given constitutional recognition.
Some may be surprised to learn that local government is not recognised in our constitution. Theoretically it could be abolished by simple-majority votes in Parliament. And as for local authorities individually – well you only need to look at the history of the Greater London Council (GLC) and others to see how, with such ease, they can be wiped from statute books.
This should cause concern. Local government can be, and so often is, a force for good. From the basics of bin collections and street cleaning, to the complex provision of adult social care, council housing, and – as was seen not so long ago – riot recovery, local government is there for people.
And what’s more, local government is democratically and locally accountable. Control of councils can and does change. We’ve seen at the centre of local elections issues such as free healthy school meals, refuse collection, and privatisation. I do accept the low turnout in many local elections is an issue that needs to be addressed, but that problem is not insurmountable and can be discussed elsewhere. The underlying point remains true: local authorities are democratically and locally accountable.
Local authorities remain democratically accountable whilst delivering a wide array of services – some managing multi-billion pound budgets. Local authorities deliver these services, and manage these budgets, on top of a foundation made up of:
- a funding settlement directed by central government subject to change with political whim;
- statute which can be changed by Parliament (or ministers) at short notice (I’ll come on to the ‘General Power of Competence’ shortly);
- ever changing government policy. To say this is an unstable footing is putting it mildly.
With so much uncertainty and restricted ability to forward plan, the fact local authorities still exist and operate with legal budgets is testament to their ability.
Some may think that the General Power of Competence’ (GPC) – introduced by the Localism Act 2011 solved all of these problems. Broadly speaking it gives councils the ability to “do anything individuals may generally do”. Surely now councils can just get on with things, no longer looking for individual positive powers? Surely now the risk of political interference is limited?
Leaving aside the fact the GPC has been spun to seem more significant than it is, the very construction of the power encapsulates the need for a constitutional footing for local government in one subsection.
Section 5(3) of the Localism Act states: “The Secretary of State may by order make provision preventing local authorities from doing, in exercise of the general power, anything which is specified, or is of a description specified, in the order.” Like so much of the Localism Act a great deal of power is relayed back to the Secretary of State, Mr Pickles (with his somewhat dubious track record in local government…).On the one hand a general power, but on the other, the ability for one minister to restrict that power almost in an instant.
And it is that conflict, the imbalance and uncertainty, which points toward the case for local government to be given a surer footing: a constitutional footing.
The Local Government Association along with Graham Allen MP, in a paper published last year – Independence from the Centre: does local government’s freedom lie in a new constitutional settlement, - explored the same idea. The report looked at Italy, Germany, France, Spain and Sweden – all of which enshrine some form of local-self government in their constitutions. And importantly the paper looked at the funding relationship between central and local government, and the need for financial independence.
Unfortunately, these issues have not received wider debate and discussion within the legal community.
Local government is in a dangerous position. Funding cuts have left some councils balancing precariously close to the edge. Councils are teetering on the edge not because of their actions but because of government ideology and policy. A government that has tried to dictate everything from council tax rates to policies on bin collection. This is a government that, contrary to ministers’ warm words about localism, pushes the odd combination of central diktat coupled with local responsibility. It would seem great responsibility no longer comes with great power.
This call for a constitutional footing could have been just as viably made at any time over the last few decades; however we face a new found urgency. So now we should discuss the next steps.
In writing this short article I don’t purport to provide the detailed solution and answers, and nor do I suggest that a constitutional footing for local government in isolation solves the dire funding situation faced by local authorities. But I hope to provoke debate, discussion, and response.
Ian Adderley is editor of Justice for All