16 September 2005
The legislative process needs to be pared down and made subject to 'sunset clauses' if more trust is to be built up between central and local government, argue George Jones and John Stewart
The government seems to be seeking a new relationship with local government. Councils have been encouraged by the support David Miliband, the Cabinet minister for communities and local government, has expressed for devolution of power to local authorities. At the same time, the Office of the Deputy Prime Minister's ten-year local government plan – 'Local Vision' – stresses the need for a relationship based upon dialogue and trust, neither of which have been much in evidence over the past 25 years.
But if central government is serious about this, it needs to look at the relationship in a new way and consider radical change. Its aim should be to create space for councils to take initiatives.
The starting point should be the approach to legislation aimed at local government, which has not been based on dialogue and trust. Over the years, both primary and secondary laws have become ever more detailed. It is as if central government believes that local authorities will not act unless compelled to do so, and that they will find ways of evading the broad requirements of legislation – or be incapable of implementing them – unless they are spoon-fed guidance and prescription on almost every detail.
The council committee system survived for almost two centuries with little legislation beyond a few clauses and regulations about standing orders. By contrast, the new political structures are backed by an Act, more than 20 regulations and directives, and more than 200 pages of guidance.
In some ways, local authorities have only themselves to blame. Whenever new legislation comes into effect, some ask for guidance, indeed beg for it so they can escape being held responsible. One principle for councils should be 'never ask for guidance'. If you do, you might find you do not like it, and it can easily become instruction. Central priorities will crowd out local priorities.
Martin Loughlin's authoritative book, Legality and locality, argued in 1996 that the Conservative government had transformed the role of law in central-local relationships from a 'facilitative framework' into a 'primary instrument of regulation'. That process has intensified since then, embodying central mistrust, which in turn bred local government mistrust of central government.
To build a central-local relationship based on trust requires changing the role played by law and regulation. The relationship between central and local government is a constitutional one. It is between two elected bodies, rooted in the principle of representative democracy. Any legislative changes affecting that should be undertaken only after careful deliberation of the constitutional consequences and scrutiny by a joint committee of both Houses, since local government is a creation of Parliament and not of one House alone.
Such scrutiny would provide an opportunity for local authorities' views to be heard in a parliamentary setting before any changes become finalised. The objective is to secure an early opportunity for open and public discussion of the issues.
Whenever legislation affecting councils is proposed, the government usually estimates how much it will cost. Many in local government believe it consistently under-estimates and that the Audit Commission should check the figures at the pre-legislative stage, after inviting views from local authorities. The commission should also review the costs after the legislation has been implemented to establish the final figures. This would encourage more accurate forecasting in the future. It is too easy to under-estimate if there is no effective follow-up check on the figures.
One major problem in the central-local government relationship is that there is no overview of it. As Act follows Act, and as regulation follows regulation, the relationship changes. Yet, because each new development is considered on its own merits, there is no regard for their cumulative effect on the central-local relationship. It is not so much that individual Acts have transformed the relationship, important though some are, but that the process of gradual change has altered the relationship.
The overview of the central-local government relationship should examine how it has changed and is changing. The government itself should be carrying out such a review as part of its continuing processes, but this alone would hardly indicate trust in local government.
A joint central-local commission would show that the government was serious about establishing a relationship based on trust and dialogue. But some might object if such a review were to be undertaken solely by interested parties, and insist on an authoritative external review. This could contain independent elements as well as representatives from central and local government. It could be a joint committee of Parliament or, better, a separate commission, perhaps a Standing Royal Commission.
The government has set up many external bodies to review local authorities, so it is not unreasonable to suggest that one should be created to review the central-local relationship, including examining existing legislation and regulations. It could report annually as well as issuing reports on specific topics as they arise. These would inform the government, Parliament, local government and the public generally. One specific study could examine how much the detail in regulations constrains innovation and initiative in local government.
Another change that would signal an important advance in central-local government relationships would be to introduce 'sunset' provisions in legislation, ie, provisions that would either lapse or become discretionary after a specified time. Such provisions might apply to the whole of the legislation, to part of it or to regulations made under it – and the same principle should govern specific grants.
The argument is simple. The government enacts legislation to establish or change policies and practices in local government. But, since it lacks understanding of the variety of circumstances in which the legislation will be applied, it usually fails to allow any space for innovation and initiative by councillors and officers.
Legislation might certainly be justified by the need to establish or change policies and practices, yet once the new developments have taken place and become set in the workings of the local authorities, the legislation, and especially its details, should become unnecessary. The new developments should be allowed to evolve, even to change, under the test of public attitudes at the local level. So the legislation, or parts of it, and the regulations should lapse, with the mandatory becoming discretionary. In this way, innovation and initiative can be encouraged, not stifled.
A start could be made on the legislation governing the new political structures. After five years, there should be enough experience to judge them on. If successful, they should stand on their own local testing. All that is required by law are provisions to make that possible. If that is too much for central government, then all or most of the regulations could lapse, thus enabling local authorities to develop in ways best suited to their needs, while retaining the executive structures demanded by central government.
These changes cannot be attained within the current approach to legislation and the current regulatory framework, which are grounded in central government's mistrust of local government. A major change is needed to overcome this pattern. At present, one cannot envisage how localism or even new localism could develop within the present destabilising and restrictive framework.
George Jones is emeritus professor of government at the London School of Economics and John Stewart is emeritus professor of local government at the University of Birmingham