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Rebalancing the central-local relationship: achieving a bottom-up approach to localism in England

Published online by Cambridge University Press:  10 July 2018

John Stanton
John Stanton*
Affiliation:
The City Law School, City, University of London, London, UK
*
*Author email: [email protected]
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Abstract

Recent governments have introduced a plethora of reforms seeking to decentralise power to local government in England. Invariably, however, these have fallen short of stated objectives, leaving councils at the mercy of central supervision and with insufficient local autonomy. This paper explores the reasons underpinning this concern. It identifies a top-down approach to localism and considers the culture of centralism that persists as a consequence. It then discusses how a bottom-up approach might be achieved, exploring how political and legal mechanisms can protect councils from centralised interference in the future.

Keywords

localismcentral-local relationshipbottom-up government
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 3 , September 2018 , pp. 429 - 449
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

Senior Lecturer in Law, The City Law School, City, University of London, Northampton Square, London EC1V 0HB. I am grateful to Professor Stephen Bailey, Professor Mark Elliott, Dr Mara Malagodi and anonymous reviewers for their comments on earlier drafts.

References

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7 For example, the general power of competence was introduced by the Localism Act 2011 to replace the well-being power only 11 years after its introduction (see A Bowes and J Stanton ‘The Localism Act and the general power of competence’ (2014) Public Law 392).

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27 Localism Act 2011, s 1(1).

28 A Plain English Guide to the Localism Act, above n 26, p 4.

29 Ibid, p 4.

30 Localism Act 2011, s 2. See Bowes and Stanton, above n 7, at 397–401.

31 Jennings, above n 21, p 2.

32 Griffith, above n 11, p 18.

33 Bailey and Elliott also identify two ‘conditions’ of localism: ‘First, local authorities must possess sufficient power, independence and financial resources to govern in a way which is distinctive, meeting the … needs of their areas and … expectations of their citizenry … Second, the quality of local democracy must … enable the participation of individuals, vouchsafe the responsiveness of local institutions and remove the need … for a high level of central interference in the business of local government”’, above n 25, at 439. I am grateful to Professor Mark Elliott for his thoughts, which have helped develop this section.

34 House of Commons Communities and Local Government Select Committee Localism HC 547 (London: HMSO, 2011)Google Scholar p 16.

35 See Hambleton, R ‘The overseas experience with political management in local government’ (1999) 2(6) Journal of Local Government Law 125Google Scholar at 126; Jenkins, V ‘Local government reform and sustainable development in Wales and Ireland’ (2009) 11(1) Environmental Law Review 21CrossRefGoogle Scholar at 23.

36 Bailey and Elliott, above n 25, at 442.

37 Loughlin, above n 11, p 50.

38 HM Government Decentralisation and the Localism Bill: An Essential Guide (London: HMSO, 2010)Google Scholar p 1.

39 See Smith, M J ‘From big government to big society: changing the state–society balance’ (2010) 63 (4) Parliamentary Affairs 818CrossRefGoogle Scholar. Also see ‘Big society speech’, above n 6.

40 Conservative Party Control Shift: Returning Power to Local Communities (2009) p 21, as cited in Sandford, M Local Government: Polls and Referendums Briefing Paper, Number 03409 (London: House of Commons Library, 2016)Google Scholar p 6. This provision required that 5% of local citizens sign a petition in favour of a referendum within a six-month period.

41 See Jones, G and Stewart, J ‘Local government: the past, the present and the future’ (2012) 27(4) Public Policy and Administration 346CrossRefGoogle Scholar at 355–356.

42 Localism Act 2011, s 72(1) and Sch 5.

43 Leigh, I ‘The changing nature of the local state’ in Jowell, J, Oliver, D and O'Cinneide, C (eds) The Changing Constitution (Oxford: Oxford University Press, 8th edn, 2015)Google Scholar p 279 at p 292.

44 See Stanton, J ‘The big society and community development: neighbourhood planning under the Localism Act’ (2014) 16(4) Environmental Law Review 262Google Scholar at 265 and 270.

45 Localism Act 2011, Pt V, Ch 2, and ‘Explanatory Notes to the Localism Act’ paras 219–223.

46 Department for Communities and Local Government National Planning and Policy Framework (London: DCLG, 2012)Google Scholar p 2, citing Planning and Compulsory Purchase Act 2004, ss 19(2)(a) and 38(6), and Town and Country Planning Act 1990, s 70(2), and cited in Stanton, above n 44, at 267–268. Also see Localism Act 2011, Pt VI, Ch 3, and Stanton, above n 44, at 269.

47 Jones and Stewart, above n 41, at 356 and 358.

48 Department of Health Public Health in Local Government: The New Public Health Role of Local Authorities (London: Department of Health, 2012)Google Scholar p 2.

49 See ibid, p 2. Also see Health and Social Care Act 2012, ss 30–32.

50 See N Merrifield ‘Health visitor budget cuts “open” to councils in public health savings drive’ Nursing Times 31 July 2015, available at http://www.nursingtimes.net/clinical-subjects/public-health/consultation-begins-on-200m-cuts-to-public-health-budget/5089335.fullarticle (last accessed 23 May 2018).

51 Local Democracy, Economic Development and Construction Act 2009, ss 10–22.

52 See Hansard HL Deb, vol 706, col 850, 17 December 2008.

53 J Stanton Democratic Sustainability in a New Era of Localism (Abingdon: Routledge-Earthscan, 2014) p 88, citing J Stanton ‘Localism in action?’ UK Constitutional Law Association 14 March 2013, available at http://ukconstitutionallaw.org/2013/03/14/john-stanton-localism-in-action/ (last accessed 23 May 2018).

54 Local Government Act 2000, s 2(1). The power remains in force in Wales (Localism Act 2011, Sch 1).

55 Cirell, S ‘The modernisation of local government and its impact on planning’ (2003) Journal of Planning and Environment Law (Supplement: Occasional Papers No 31) 1 at 10–11Google Scholar.

56 Swann, P ‘Local government: the modernizing agenda’ (2000) Journal of Planning and Environment Law (Supplement) 9 at 13Google Scholar, cited in Bowes and Stanton, above n 7, at 394.

57 Jenkins, V ‘Learning from the past: achieving sustainable development in the reform of local government’ (2002) Public Law 130 at 141Google Scholar. The economic, social and environmental objectives of the well-being power mirror the three-pillars of sustainable development. This is discussed further in Stanton, above n 53, pp 19–20. For judicial limitation of the well-being power, see R (Brent London Borough Council) v Risk Management Partners [2009] EWCA Civ 490.

58 Stanton, above n 8, at 982.

59 Ryan, M ‘Central-local government relations and the UK constitution’ (2009) 14(1) Coventry Law Journal 20 at 21Google Scholar, citing House of Commons Communities and Local Government Select Committee The Balance of Power: Central and Local Government HC 33-I (London: HMSO, 2009) p 35Google Scholar.

60 National Audit Office Local Government Report by the Comptroller and Auditor General: The Impact of Funding Reductions on Local Authorities (London: NAO, 2014)Google Scholar para 1.4.

61 ‘Chancellor on building a northern powerhouse’, above n 4.

62 Hansard HC Deb, vol 603, col 822, 7 December 2015.

63 G Osborne ‘The Chancellor's speech to Conservative Party Conference 2015’ 5 October 2015, available at http://press.conservatives.com/post/130748611145/the-chancellors-speech-to-conservative-party (last accessed 23 May 2018). Also see BBC News ‘George Osborne: Councils to keep £26bn in business rates’ BBC News 5 October 2015, available at http://www.bbc.co.uk/news/business-34445311 (last accessed 23 May 2018).

64 See Department for Communities and Local Government and G Clark ‘Final local government finance settlement 2016 to 2017’ 8 February 2016, available at https://www.gov.uk/government/speeches/final-local-government-finance-settlement-2016-to-2017 (last accessed 23 May 2018).

65 A Vaughan ‘Fracking given UK go-ahead as Lancashire council rejection overturned’ The Guardian 6 October 2016, available at https://www.theguardian.com/environment/2016/oct/06/uk-fracking-given-go-ahead-as-lancashire-council-rejection-is-overturned (last accessed 23 May 2018).

66 See Local Government Association ‘Briefing: Cities and Local Government Devolution Bill, Second Reading, House of Lords’ 8 June 2015, available at http://www.local.gov.uk/documents/10180/11607/2015+06+08+Cities+and+Local+Government+Devolution+Bill+-+HL+-+Second+Reading.pdf/fcfc0c8d-b108-4bde-9dbe-7debb1163513 (last accessed 22 March 2017).

67 See Cities and Local Government Devolution Act 2016, s 5(1). This concern was raised during the Bill's Third Reading: Hansard HC Deb, vol 603, cols 822–823, 7 December 2015.

68 See Sandford, M Directly-elected Mayors Briefing Paper, Number 05000 (London: House of Commons Library, 2016) p 13Google Scholar. The referendum, held in May 2012, saw the rejection of the proposed adoption of a directly-elected mayor for the existing Manchester City Council.

69 Andy Burnham was elected as the new mayor for the Greater Manchester Combined Authority on 4 May 2017.

70 Combined authorities are created by joining two or more local government areas: Local Democracy, Economic Development and Construction Act 2009, s 103, though these no longer have to be adjacent to one another: Cities and Local Government Devolution Act 2016, s 12.

71 See Jameson, H and Hailstone, J ‘Unitary option mooted in push for devo deals’ (18 February 2016) The MJ 3Google Scholar.

72 Referenda under the Localism Act 2011, for instance, saw widespread rejection of the model in respect of existing councils (see Sandford, above n 68, p 13). Even since the introduction of devolutionary deals, citizens have expressed a ‘strong desire for devolution but no great love for a mayor’ (Peters, D and Clayden, S ‘DCLG leaves door open on delayed mayoral elections’ (18 August 2016) The MJ 1Google Scholar), with turnout at the six combined authority mayoral elections held in May 2017 averaging just 27.45% (BBC News, ‘Elections 2017 results: Tories win four new mayors’ BBC News 5 May 2017, available at http://www.bbc.co.uk/news/election-2017-39817224 (last accessed 23 May 2018)).

73 See R Peston ‘Partial reversal of Thatcher's local government castration’ BBC News 5 October 2015, available at http://www.bbc.co.uk/news/business-34449708 (last accessed 23 May 2018).

74 Hansard HL Deb, vol 762, col 654, 8 June 2015.

75 See J Stanton ‘(D)evolution for local government’ UK Constitutional Law Association 15 July 2015, available at http://ukconstitutionallaw.org/2015/07/15/john-stanton-devolution-for-local-government/ (last accessed 23 May 2018).

76 J Stanton ‘Decentralisation and council business rates: More of the same from Whitehall?’ City, University of London 12 October 2015, available at http://www.city.ac.uk/news/2015/october/decentralisation-and-council-business-rates-more-of-the-same-from-whitehall (last accessed 23 May 2018).

77 HM Treasury and G Osborne ‘Budget 2016: George Osborne's speech’ 16 March 2016, available at https://www.gov.uk/government/speeches/budget-2016-george-osbornes-speech (last accessed 23 May 2018).

78 The Balance of Power: Central and Local Government, above n 59, para 62.

79 Davoudi and Madanipour, above n 12, p 1.

80 Leigh, above n 14, p 7.

81 Bowes, A and Purdue, M ‘Former DCLG permanent secretary criticises Government housing policies’ (2015) 9 Journal of Planning and Environment Law 1000Google Scholar at 1000. Also contrast with Mill, above n 14, p 292.

82 Jones and Stewart, above n 41, at 356.

83 Mill, above n 14, p 292.

84 Stanton, above note 8 at 983, citing interview 3.

85 Interview 3, cited in ibid at 984.

86 BBC television series, Yes, Prime Minister: Power to the People (7 January 1988) Series 2, Episode 5.

87 Ibid.

88 Loughlin, above n 11, p 262, cited in V Lowndes ‘Rebuilding trust in central/local relations: policy or passion?’ in Pratchett, L (ed) Renewing Local Democracy?: The Modernisation Agenda in British Local Government (London: Routledge, 2000)Google Scholar p 116.

89 Loughlin, above n 11, p 262.

90 Jones and Stewart, above n 41, at 356.

91 The Balance of Power: Central and Local Government, above n 59, para 62.

92 The Guardian ‘UK election historic turnouts since 1918’ The Guardian 16 November 2012, available at https://www.theguardian.com/news/datablog/2012/nov/16/uk-election-turnouts-historic (last accessed 23 May 2018). Turnout at the 1998 and 2000 local elections was 28.8% and 29.6% respectively.

93 See Widdicombe, above n 17, para 3.11 and ch 3, as cited in Leigh, above n 14, pp 5–6.

94 See Rallings, C and Thrasher, M Local Elections in Britain (London: Routledge, 1997)CrossRefGoogle Scholar ch 4; and Atkinson, above n 20, pp 79–80.

95 Atkinson, above n 20, p 12, citing Beetham, D ‘Theorising democracy and local government’ in King, D and Stoker, G (eds) Rethinking Local Democracy (London: Palgrave, 1996)Google Scholar p 28 at p 41.

96 See Atkinson, above n 20, pp 80–81.

97 Madanipour, A and Davoudi, S ‘Localism: institutions, territories, representations’ in Davoudi, S and Madanipour, A (eds) Reconsidering Localism (Abingdon: Routledge, 2015)Google Scholar p 11 at pp 15–16.

98 King, above n 22, p 151.

99 See Leigh, above n 14, p 6.

100 Davoudi and Madanipour, above n 12, p 1.

101 Mill, above n 14, p 299.

102 Melé, D ‘Exploring the principle of subsidiarity in organisational forms’ (2005) 60(3) Journal of Business Ethics 293CrossRefGoogle Scholar at 293, cited in Madanipour and Davoudi, above n 97, p 17. (Also see Madanipour and Davoudi, pp 15–16.)

103 Madanipour and Davoudi, above n 97, p 17, citing Cass, D ‘The word that saves Maastricht? The principle of subsidiarity and the division of powers within the European Community’ (1992) 29(6) Common Market Law Review 1107Google Scholar.

104 Bogdanor, above n 16, p 235, and Widdicombe, above n 17, para 3.11 and ch 3, as cited in Leigh, above n 14, pp 5–6.

105 Stanton, above n 53, p 110 and ch 5 generally. For further examples of other community-led regeneration projects, see Foley, P and Martin, S ‘A new deal for the community? Public participation in regeneration and local service delivery’ (2000) 28(4) Policy & Politics 479CrossRefGoogle Scholar.

106 See ‘Big society speech’, above n 6, and Department for Communities and Local Government Community Right to Challenge: Statutory Guidance (London: DCLG, 2012)Google Scholar.

107 Government reported in 2014 that ‘[a]ll 28 neighbourhood planning referendums held so far have been successful’, also noting turnouts as high as 59.5% (Department for Communities and Local Government ‘Notes on #neighbourhoodplanning’ DCLG August 2014, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/342893/Notes_on_neighbourhood_planning_Edition_10.pdf (last accessed 23 May 2018).

108 Madanipour and Davoudi, above n 97, p 17.

109 The Balance of Power: Central and Local Government, above n 59, para 146; cited in Ryan, above n 59 at 20.

110 Butler, D, Adonis, A and Travers, T Failure in British Government: The Politics of the Poll Tax (Oxford: Oxford University Press, 1994)Google Scholar p 303, cited in Bailey and Elliott, above n 25, at 457.

111 See Bailey and Elliott, above n 25, at 454–456.

112 Scott, A ‘The role of concordats in the new governance of Britain: taking subsidiarity seriously?’ (2001) 5(1) Edinburgh Law Review 21CrossRefGoogle Scholar at 21.

113 Ibid, at 21.

114 Ibid, at 21, citing V Bogdanor ‘Constitutional Reform in the UK’ (paper presented at the Centre for Public Law, University of Cambridge, January 1998).

115 Bogdanor, ibid, cited in Scott, ibid, at 21.

116 See Headlam, N The Central-Local Concordat SN/PC/04713 (London: House of Commons Library, 2008)Google Scholar.

117 Ibid, p 2.

118 House of Commons Political and Constitutional Reform Select Committee Prospects for Codifying the Relationship Between Central and Local Government HC 656-I (London: HMSO, 2013) p 10Google Scholar.

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120 See Bailey and Elliott, above n 25, at 470–471.

121 Ibid, at 470–471.

122 Himsworth, above n 119, at 705.

123 Use of referenda as a way of permitting the public a role in endorsing a strengthened central-local relationship is discussed here: C Copus ‘Local governance research unit: codifying the relationship between central and local government’ Department of Public Policy, Business and Law, De Montfort University, Leicester 2010, available at http://www.dmu.ac.uk/documents/business-and-law-documents/research/lgru/paper-2-codifying-the-relationship-between-central-and-local-government.pdf (last accessed 23 May 2018).

124 Prominent referendums typically seem to inspire higher turnouts. At the 2014 referendum on Scottish independence, for instance, turnout was 84.6%, whilst in June 2016, the referendum on the UK's continued membership of the European Union saw a turnout of 72.2%.

125 Bailey and Elliott, above n 25, at 470–471.

126 Madanipour and Davoudi, above n 97, p 17.

127 The reserved powers model in Wales was introduced by the Wales Act 2017, replacing the conferred powers model that previously existed.

128 Bailey and Elliott, above n 25, at 471.

129 A category of shared matters also features within the devolution legislation. See, for example, Wales Act 2017, Sch 4, which identifies ‘[f]unctions of Ministers of Crown … exercisable concurrently or jointly with Welsh Ministers’.

130 Department for Communities and Local Government and the Local Government Association Central-Local Concordat (London: DCLG, 2007)Google Scholar p 10.

131 Bailey and Elliott, above n 25, at 471.

132 Prospects for Codifying the Relationship Between Central and Local Government, above n 118, p 34.

133 Bailey and Elliott note the benefits of combining political and legal measures in this context: above n 25, at 471.

134 Scotland Act 2016, s 2. Also see Wales Act 2017, s 2 for a similar provision with regard to Wales.

135 See further R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 at paras 136–151.

136 Where the consent of a large number of councils is required, the Local Government Association could act on behalf of councils, as happened in respect of the 2007 Concordat (see above, and n 116).

137 See, for instance, AXA Insurance v Lord Advocate [2011] UKSC 46.

138 The Balance of Power: Central and Local Government, above n 59, para 146, cited in Ryan, above n 59, at 20.

139 Prospects for Codifying the Relationship Between Central and Local Government, above n 118, p 3, these included: ‘local government should be independent of central government, have a secure financial base, and, with the consent of its electors, be able to exercise a range of revenue-raising powers suitable to the needs of the local community’.

140 Ibid, p 33.

141 See Gordon, M Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Oxford: Hart, 2015)Google Scholar ch 3.

142 Smith, J ‘The European Charter of Local Self-Government: does the UK government comply?’ (2002) 5(5) Journal of Local Government Law 90Google Scholar at 90.

143 King echoes this: ‘Any attempt by the Westminster parliament radically to amend either the Scotland Act or the Government of Wales Act without the freely given consent of the Scottish parliament and Welsh assembly would cause uproar … in the country affected’ (King, above n 22, p 207).

144 House of Commons Procedure Committee Procedural Consequences of Devolution: Interim Report HC 148 (London: HMSO, 1999) p 15Google Scholar, cited in Wood, E The Procedural Consequences of Devolution Research Paper 99/85 (London: House of Commons Library, 1999)Google Scholar.

145 Scotland Act 2016, s 2 and Wales Act 2017, s 2, and above n 134.

146 The Public Administration and Constitutional Affairs Committee, for instance, noted in November 2016 ‘that occasions … arise when the devolved administrations … [are] treated as an afterthought’ (House of Commons Public Administration and Constitutional Affairs Select Committee The Future of the Union, Part Two: Inter-institutional Relations in the UK HC 839 (London: HMSO, 2016)Google Scholar para 106).

147 House of Commons Communities and Local Government Select Committee Devolution: The Next Five Years and Beyond HC 369 (London: HMSO, 2016)Google Scholar p 45.

148 See House of Commons Standing Orders: Public Business 2017 HC 4 (London: House of Commons, 2017)Google Scholar para 83J.

149 The procedure also applies in respect of Bills that apply only to England and Wales.

150 Where consent is withheld, the Bill can return to the House for amendment. If it is still withheld, the Bill will go no further. See for further explanation M Kenny and D Gover ‘The triumph of EVEL: what next for the English question?’ The Constitution Unit, UCL October 2015, available at https://constitution-unit.com/2015/10/23/the-triumph-of-evel-what-next-for-the-english-question/ (last accessed 23 May 2018).

151 See House of Commons Political and Constitutional Reform Committee Constitutional Implications of the Government's Draft Scotland Clauses HC 1022 (London: HMSO, 2015)Google Scholar para 36, citing DSB01 (written evidence submitted by Dr Mark Elliott). Contingent entrenchment is here defined as provisions ‘stipulating certain preconditions for their abolition, such as “a special majority in the UK Parliament”’ (see para 36, citing DSB01).

152 House of Commons Political and Constitutional Reform Select Committee Consultation on A New Magna Carta? HC 599 (London: HMSO, 2015)Google Scholar p 30.

153 Prospects for Codifying the Relationship Between Central and Local Government, above n 118, p 33.

154 Himsworth, above n 119, at 706.

155 [2003] QB 151. Laws LJ stated: ‘We should recognise a hierarchy of Acts … “ordinary” statutes and “constitutional” statutes. … [A] constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights … Ordinary statutes may be impliedly repealed. Constitutional statutes may not’ (at 186). Also see Miller, above n 135, paras 66–67.

156 Varney, above n 24, p 337.

157 Ibid, p 337.