Localism

The government's Localism Bill was introduced earlier this week and is to receive its Second Reading in the House of Commons shortly after the Christmas recess on 17 January. It is a big Bill and this article is not going to deal with all of it (in particular it is not going to deal with most planning issues). Instead it just gives an impression or overview.

Although showing signs of having been put together at speed (the explanatory notes only became available yesterday) Eric Pickles clearly has retained clout within the cabinet, as he has resisted the pressure that would have arisen within his department for them to be watered down. Some of the provisions are pleasingly radical, and others less so. This is the kind of Bill that can only be introduced comfortably in the first year or two of office.

Powers of local authorities

In my article on the Royal Prerogative I explored the difference between the powers of a natural person on the one hand, which includes the Crown, which in summary allow an ordinary person or the government to do anything not explicitly or impliedly prohibited by the common law or statutory provision, and the powers of a creature of statute such as local authorities on the other hand, which are limited to doing the things which statutory provision has authorised them to do (whether explicitly or implicitly).

Under the Bill, local authorities will be given power "to do anything that individuals generally may do": they would therefore acquire at law similar powers to those of the Crown.

This is subject to certain caveats, including one relating to "overlapping" powers. If the local authority has power to do something apart from these new powers, the exercise of which is subject to conditions, then the new power cannot be exercised except in accordance with those conditions. In that respect, it is a re-enactment of the rule applying to the exercise of the natural powers of the Crown set out in Attorney General v De Keyser's Royal Hotel [1920] AC 508 and explored in Shrewsbury and Atcham Borough Council and Others) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148.

This is a very substantial new power for local authorities. It makes them first-rank public authorities on a par constitutionally with government departments.

However, just as the broad powers of the Crown are in practice limited by the requirement that government departments may only spend what is appropriated to them from the consolidated fund by an Appropriation Act or some other consolidated fund Act, so local authorities can only spend what they are given or can raise, and this brings us to referenda.

Referenda

Local authorities, and their cousins the police and fire authorities, will still be subject to government control of expenditure, but in a marginally more hands-off way than in the past. Governments may still set council tax ceilings, but these can be exceeded by the local authority on a referendum of all registered voters in the authority's area.

The key issue here is the extent to which the government will set unnaturally low ceilings with a view to driving down local authority spending through local voter reluctance. The fact that, under the Bill, expenditure which exceeds the ceiling is described as "excessive" expenditure rather than a more neutral expression such as "locally determined" expenditure (or even "supplementary" expenditure) perhaps gives the game away here: that the driver is expenditure reduction rather than an interesting experiment in practical local democracy.

Referenda also feature in another proposal. Any local elector can petition the local authority for a local referendum to be held on anything relevant to its functions, provided that it is signed by 5% of the local electorate (or a higher precentage stipulated by the Secretary of State) or submitted by a councillor. If the local authority then decides that the referendum should be held, it must take place between two and twelve months after the receipt of the petition. The local authority does not have to implement the result of the referendum (it is not binding), but it must consider it and give its reasons for the decision it makes in response to the referendum.

There is a further referendum-based idea, under which development to be carried out for, say, rural housing and community facilities can be carried out, without planning permission from the local authority, if it is mandated by a vote of more than 50% of the local residents on a referendum.

Abolition of the Infrastructure Planning Commission

I was never a great fan of the Infrastructure Planning Commission. From time to time the issue is raised by those lawyers who are not strong on the need for democratic accountability in decision making within a law-based society, whether the pre-IPC regime was consistent with article 6 of the European Convention on Human Rights. Article 6 provides that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

When the ECHR was drawn up, the original drafters would I suspect have been surprised at the idea that this applied to planning decisions, but the jurisprudence of the European Court has held that the right to develop land as an attribute of the ownership of that land falls within the category of a civil right. Lawyers being lawyers, English jurisprudence has also managed to persuade itself that because Secretaries of State set national planning policy, they cannot of themselves be an "independent and impartial tribunal" in determining how their policy applies to particular cases. (That is in my view a serious logical error, but that issue is now beyond recall.)

The early Labour government was rather more sound about this than its successors, and they stood their ground in a series of cases comprised in R v Secretary of State for the Environment, Transport and the Regions ex p Holding & Barnes plc [2001] UKHL 23 and the other conjoined appeals known collectively as "the Alconbury appeals". Their Lordships came to the rescue against the legal technocrats, drawing on other jurisprudence of the European Court to the effect that in determining whether the requirements of article 6 of the Convention are met it is necessary to look at the whole of the process, and that it is not necessary that a court or some other independent body should be available to consider the matter afresh by way of a rehearing on an appeal on the merits. It was held that the then current principles of judicial review, coupled with the rules of natural justice as applying to the fact-finding processes of public inquiry, were sufficient to meet the requirements of the Convention.

Some of the gut thinking behind this view is illustrated in the words of Lord Nolan who said -

"In the relatively small and populous island which we occupy, the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country planning ... to substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic".

Similarly, Lord Clyde said –

"One possible solution which is proposed is that in the cases where at present the Secretary of State is himself the decision maker, the cases for the most part which are likely to give rise to issues of widespread or even national concern, which may well have a wide impact on the lives of many and involve major issues of policy, the decision should be removed from the Minister, who is answerable to Parliament, to an independent body, answerable to no-one. That would be a somewhat startling proposition and it would be surprising if the convention which is rooted in the ideas of democracy and the rule of law should lead to such a result".

I was therefore somewhat surprised and disappointed when the later Gordon Brown administration set up just such a body to determine major infrastructure projects in England.

I am glad to say that the Tory government is of the Nolan/Clyde persuasion. Where you have a decision for, say, the major redevelopment of a town centre which will impact the lives of its inhabitants for the next 30 or 40 years, or a major new high speed railway line likely to be used for many years ahead, in my view it is quite wrong that such decisions should be taken under some dry forensic process by a body of people not answerable to the voter, or to anyone else for that matter. So full marks to Pickles on this one.

Other matters

There are numerous other provisions in the Bill, including some dealing with the right of local groups to take over defunct community assets, the security of tenure of public sector tenants, the abolition of regional housing targets and the abolition of home information packs (HIPs) on house sales. One remaining initiative which may have a beneficial impact is the proposal for the introduction of executive mayors, on the Mayor of London model (albeit with less powers), for the cities of Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle upon Tyne, Nottingham, Sheffield and Wakefield. There would be referenda on this in each of the cities concerned in 2012.

I hope these executive mayor referenda succeed. Such a collection of "English Barons" may have a moderating effect on subsequent attempts to claw back some of this local divesting of power.

As to what I would like to see in the future? As mentioned above, I would like to see local council tax accountability used not just as a means of driving down expenditure, with pejorative references to excessive expenditure measured against government targets, but have this transmuted into a form of local tax devolution. I would also like to see the powers of the new directly-elected mayors extended so as to be comparable to, and indeed go beyond, those currently held by the Mayor of London. However, that may be for the reforming zeal of a different government before the deadening hand of a number of years in office has taken its hold. The problem with this hopeful thinking is that such devolution in England is likely to be beyond the stomach of any incoming Labour government, so I am likely to be disappointed.

The separate government proposals for elected Police Commissioners (not in the Bill) contains within it a similar idea: bringing local accountability to decision making affecting areas of life in a community not at present adequately subject to such accountability. (The proposition put forward by some present and former chief constables, that the way law breaking is dealt with in a local community is a special operational matter that only a trained chief constable acting in accordance with his professional training can decide, is in my view wrong.)

Student debt

It is sad when the only way it is possible to get politicians to respond to the concerns of ordinary people is to have a good rampage; but sadly, that is how disconnected we and they are. Our Labour politicians would no doubt have done roughly the same if they had managed to keep in power: they set up the Browne committee review in the first place, and a graduate tax is the same beast wearing different clothing.

Two points. First, after extensive research in pubs of my acquaintance I have yet to find anyone who thinks it is a good idea to saddle graduating students with between £30,000 and £50,000 of debt, before they have even got their foot on the first rung of the ladder. Camilla may not like paint being thrown at her car; but most families don't like their young adults being treated this way either. And this is before they have to battle with trying to buy their first house when they do find a job.

Secondly, compare the wall-to-wall coverage on BBC news of the demonstrations with the amount of coverage given to the issues at stake.

Anyway, here is some music for the moment .

The West Lothian question rumbles on

I watched Question Time last night. It was the usual mix of politicians following their party lines (including Nadine Dorries tying herself up in knots) and John Sargeant arguing an implausible apologia for the BBC, to the effect that it would have been improper to delay the showing of the Panorama programme about FIFA until after the decision on the venue for the 2018 World Cup. Possibly one or two people might believe that.

The thing which drew my attention was the extent to which people are obviously getting concerned about increased higher education fees for students coming from England. John Sargeant was good on this (he said what he thought when not having to stand up for his former employer), pointing out that having a well educated citizenry is the key to future success, and that this country has managed to afford to educate its young people in the past when it was poorer and there seems no reason why it should not do so in the future. It is just a matter of priorities.

What interested me is the wedge this seems to be beginning to drive between people in England and Scotland. Outwardly it is unconscionable that students in England should pay large sums of money for their higher education when those in Scotland will not. A Scot and a person from England with similar qualifications may sit in adjacent desks at the same place of work in future, doing the same work at the same rates of pay, with one having to pay deductions against her income once she finds employment for as much as 20 years into the future, and one not. The Liberal Democrat proposals for a graduate tax do not seem any improvement on that: it is the same inequality in a different form, and indeed would be a form of double or super-regressive taxation - if it is true that graduates in general earn more, they pay more anyway through the existing income tax system

However this difference between England and Scotland, and now Wales also, is what devolved decision making is about. The overarching point on this is that every pound the Scottish government pays for higher education is a pound less that it can spend on something else within its devolved competence. There seems no reason, applying devolution logic, why this should cause friction within the UK, but the practical workings of devolution in this case, no doubt aided by the rantings of the Daily Mail, is doing so because the differential policy-making on higher education is, at the end of it all, simply unfair. And unfairness breeds resentment. The SNP must be loving it.

During the Question Time programme, Ken Livingston brought up the West Lothian question on this. Like it or not, it is a fact that student fees in England were only introduced in 2004 on the votes of Labour MPs for Scottish constituencies (and even worse, on a vote taken after the Scottish Labour party had decided against higher education fees for students in Scotland). Tom Harris MP, member for Glasgow South, has apparently taken exception to this, describing it as "anti-Scottish". Perhaps he has a guilty conscience as one of those responsible in 2004, but if not he should have. He has gone on to say that the West Lothian question has no answer and the Labour party should not get involved in considering it.

If it is really the case that there is no answer to the West Lothian question, then the Labour party in general and Tom Harris in particular should never have proceeded with devolution in the first place. If that is really the case, it is only a matter of time before the the current constitutional arrangements collapse. Let us image that Labour had managed to stitch together a deal with the Liberal Democrats, SNP and Plaid Cymru to form a government after the last election: it would have been wholly reliant on its Scottish and Welsh members to enact its legislation affecting England only on matters devolved elsewhere, such as education. The current angst over fees for English students would surely be dangerously magnified if the current proposed disparities for students from England were to have been imposed by MPs for Scottish and Welsh constituencies not subject to the additional fees. Arguments that there are knock-on effects on Scotland and Wales via the Barnett formula, while that formula lasts (it is due for replacement), would have cut little ice.

There are answers to the West Lothian Question, some of which I explore here, here, here and here . The Tory pledge to deal with it was, as part of the Coalition agreement, shunted to a Commission to be set up by the Deputy Prime Minister, Nick Clegg. He was supposed to have set one up during the Autumn, but will now apparently publish proposals for one "by Christmas". It would be foolish for the Labour party to follow Tom Harris's advice and fail to engage, if and when Nick Clegg can manage to muster the energy to proceed with it. They created the current devolution arrangements, and they must help to resolve the problems it has created.