A Comparative Perspective – UK Constitutional Law Association

Local government is an aspect of UK constitutional law that is often neglected or overlooked. Councils, though, are a vital part of our governmental order, providing the services and opportunities, and making the decisions and policies, that shape a large part of our day-to-day lives. They are also the institutions of government with which the population interact most frequently. Local government across the UK, however, is hampered by the constitutional system of which it is part. The predominance of the sovereign Parliament and the lack of any codified constitutional provision means that councils in the UK are at the mercy of the centre and that they do not enjoy any protection from easy change, manipulation or prescription. This has a profound effect on the way in which councils operate, as my new book, “Law, Localism, and the Constitution: A Comparative Perspective”, explores.

This post is intended to mark the publication of the monograph, giving a flavour of its contents and identifying the important contribution to the field that it seeks to make. The book offers an historical, empirical, and comparative examination of local government across the different parts of the UK. In so doing, it explains councils’ constitutional status and discusses how this hinders the realisation of genuinely “local” government, proposing a number of reforms that would correct this reality. The defining feature of the book is the wealth of empirical data that informs its discussions and conclusions. At two points during the project, surveys were sent to councils across different parts of the country to seek views on a range of issues, including central-local relations, local government finance, internal and external council organisation, democracy, and local government reform. Councillors’ answers to these surveys provided both inspiration for the focus of the various chapters as well as evidence of many of the arguments and conclusions offered throughout.

The constitutional status of local government

Like much of the UK Constitution, an understanding of the role played by local government must be rooted in an appreciation of the historical significance of the institution and the way in which it has evolved and developed over the centuries. Chapter two of the book, therefore, explores in detail councils’ historical foundations, tracing the origins of local administration back to medieval times and following these through myriad legal and political developments to the present day. A theme prevalent throughout this exploration is the extent to which – as far back as the Norman period – local institutions have operated and developed in a way that best complements the centre, a factor that is pertinent in view of local government’s modern constitutional position. Indeed, and in this regard, there is a tension between the theoretical position that councils should ideally enjoy and the practical role that they are instead called upon to fulfil. Chapter three explains:

On the one hand, there is a value inherent in having locally focused, elected bodies of government serving people in local areas, and councils should as a result enjoy the means, the freedom, and the autonomy to realise this value. On the other hand, the uncodified constitutional system in the UK places ultimate power at the centre with the sovereign Parliament, controlled as that invariably is by a majority government with its own political agenda. This tension plays out in the form of a local governmental system that is heavily centralised (both in England and in the devolved nations), that lacks autonomy and that is in urgent need of reform (p 76).

Directly elected mayors and local government finance

This hypothesis is supported throughout the second part of the book by councillors’ responses to the surveys and by consideration of their experiences and perspectives working within local government as part of a heavily centralised system. 

With regard to English councils’ internal executive arrangements, for example, there are a range of possible models available, these generally offering a combination of an elected mayor or an executive leader with either a cabinet structure or a committee system. Focusing on the directly elected mayoral model, this is an arrangement that has been consistently favoured by central government but overwhelmingly rejected by local people. In this regard, since the Local Government Act 2000, there have been numerous attempts by Parliament to authorise the easy introduction of the model. Whilst early provisions simply gave to councils the power to hold referendums on whether elected mayors should be introduced, few referendums were held and even fewer authorities adopted the model. Indeed, “[b]etween June 2001 and October 2021, 55 referendums were held on the question of whether a directly elected mayor should be established, these giving rise to just 16 mayors, three of which have since been abolished” (p 124). As a consequence, and “due no doubt to a series of negative referendum votes”, subsequent provision has enabled adoption of the mayoral model without democratic support and with greater input from the Secretary of State.

This disparity between the centre’s enthusiasm for the model, against local reticence, has played out in the context of the centrally-tilted relationship between Whitehall and local government. A case in point is the directly elected mayoral model, or “metro mayors”, which were offered as part of the Northern Powerhouse agenda in 2016. Councils that came together as part of a combined authority (under the Local Democracy, Economic Development and Construction Act 2009), would inherit greater power if they adopted the government-desired model of a directly elected mayor (under the Cities and Local Government Devolution Act 2016). As George Osborne said in 2015, “with these new powers for cities must come new … elected mayors … I will not impose this model on anyone. But nor will I settle for less … I’m not interested in … half-way house details. We will transfer major powers only to those cities who choose to have a directly elected metro-wide mayor”. Due to the predominance of centralised power, therefore, councils lack the genuine freedom and autonomy to organise themselves in a way that best suits the needs and wants of local areas.

Another area that highlights the centralised nature of central/devolved-local relations – and not just in England, but across the UK – is local government finance. Councils are reliant on central (or devolved) government for much of their funding; council tax and charges for local services provide a small portion of their overall budget (except in Northern Ireland where council tax provides the majority of local money). Most comes from grants, either specific or general. This is problematic for a number of reasons. First, amid recent attempts to tackle austerity, funding to councils has been massively reduced. As a councillor from Windsor and Maidenhead noted as part of the study, “continued cuts in funding … leave [the] Council less and less scope to create something of real value for people” (p 215). Secondly, it creates a mismatch of accountability since councils are responsible for providing local services but are not necessarily responsible for the lack of funding provided for those services. Thirdly, reliance on centrally provided money, some of which is provided for specific projects, risks a one-size-fits-all approach to local finance. In Wales, one councillor said that “large sums [of ring-fenced money] have been spent in my (hilly) area on rarely used, government-funded cycle tracks. Had … [the council] had a free hand, the money would have been spent on other more useful projects” (p 211). Beyond reliance on centrally provided money, councils are also subject to various central controls on their tax raising powers. For example, recent years have seen increased prescription by the Scottish Government on the levels at which councils could set their council tax, a freeze on tax increases between 2008 and 2017 being particularly prominent.

Directly elected mayors and local government finance, therefore, are just two areas on which the book focuses in examining and explaining how local government’s constitutional position impacts upon its ability to function and provide local leadership. More broadly, the centralised nature of relations was noted by councillors who talked of “poor”, “disconnected”, “distant” relations with institutions that are “out of touch” and “difficult” (p 237).

Constitutional reform

On the strength of its various discussions and considerations, the book offers suggestions for reform through the realisation of a new constitutional settlement for local government. This, the book argues, must be rooted in political consensus on the value of the institution and the role that it could play in the UK consistent with the principle of subsidiarity. Though this is a principle familiar to scholars of European Union law, the book argues that the concept is capable of being applied within domestic constitutional law as a way of justifying the important role that councils can play within the UK governmental system. This consensus should be established on an equal political footing between central/devolved government and its local counterparts, and it should be undergirded by the European Charter of Local Self-Government. Introduced by the Council of Europe in 1985, this Charter requires that signatories apply “basic rules guaranteeing the political, administrative and financial independence of local authorities” through the operation of “local authorities endowed with democratically constituted decision-making bodies … possessing a wide degree of autonomy”. This political consensus should, then, be bolstered by constitutional legislation that could give local government a stronger position in the UK. This might be achieved by creating an exception to the Parliament Acts, giving the House of Lords a power of veto over any attempts to modify the constitutional position of local government and by incorporating into UK law the European Charter of Local Self-Government. This last point has recently been explored in Scotland and the book argues that legislation mirroring provisions of the Human Rights Act 1998 could give the necessary security to local government without jeopardising the sovereignty of Parliament.

This post has given just a glimpse of some of the issues and discussions that feature in “Law, Localism, and the Constitution”. The book is published by Routledge and will be formally launched at an event at City, University of London on Thursday 25 May 2023.

Dr John Stanton is Senior Lecturer in Law at the City Law School, University of London.

(Suggested citation: J. Stanton, ‘Law, Localism, and the Constitution: A Comparative Perspective’, U.K. Const. L. Blog (27th April 2023) (available at https://ukconstitutionallaw.org/))