The Bill hasn’t been around for long, but it is already time to take a step back and look at the big picture. Is the Localism Bill a refreshing, new approach by government based on trust and confidence in local government’s ability and skill to lead communities through troubled times; or, is the Bill little more than the continuation of the centralising approach governments have depressingly taken over the decades?
Those arguing for the former can point to section one and the general power of competence. General competence – if that is to be the same as the ‘general power of competence’ and let’s assume for the sake of argument that it is, would give councils the power to do anything that is not prohibited by law, rather than councils only being able to do those things expressly allowed in law. It is a complete reversal of the current standing of local government. General competence is a power which has the potential to fundamentally alter the relationship between local government and the centre and local government and just about anything else. But, the reaction to this new power has been strangely muted whilst concerns are loudly voiced about what the effect on councils would be of community right to challenge and community expressions of interest; changes to the planning regime with the abolition of regional spatial strategies and the Infrastructure Planning Commission and the introduction of new forms of neighbourhood planning; the housing and finance changes; the claw-back of EU imposed fines; and, almost every other point of detail in the Bill.
So what is the big picture? The potential embedded in the general power of competence can change the way in which local government goes about its business and will free-up councils to start emphasising the ‘government’ in local government. The power means a reappraisal of the relationship between the centre and the localities and a rebalancing of the relationship between Westminster / Whitehall and local government by making a localist presumption in central / local relationships. Central government would be faced with alternative centres of governing capacity that could act on their own merits. But, will councils do so? Already the reaction from many local government lawyers is cautious and guarded – that’s their job, of course – but, this is a political power which councillors should be courageous and imaginative in using because it doesn’t only rest on central government willingness to cede some power – it rests on councils using that power. General Competence should be seen as a liberating power not a restraining factor to be argued over and interpreted. Across Europe, general competence, based on a presumption of devolution and localism, provides councils with a strong position within constitutional arrangements. The challenge of general competence is that of a shift in attitudes and practices at both the centre and local government. Not forgetting, of course, the courts – we wait to see if they are willing to let ultra vires slip into the history books, without a fight.
Referendums are also part of the big picture – the injection into a local representative system of democracy of a dose of direct democracy. But, unfortunately, these local votes will be non-binding and therefore largely pointless and potentially a massive disappointment for any communities active and hard-working enough to get the 5% support from local citizens required to trigger a referendum in the first place. Let’s hope an amendment to the Bill makes the results of local referendum binding. After all, we elect our councillors by a public vote and no one demands that the outcome of the local election should be non-binding.
Now the downside: there are 142 references, so far, in the Bill to ministerial power, which if taken with the way in which ministers – of all governments – like to dictate to councils what they should be doing and how, is a worrying contradiction to the principle of localism. It shows that central government still doesn’t trust local government. On top of this there is the depth and detail within the Bill – like all others – which stifles proper consideration of principle and practice and sets up a lawyers’ paradise of interpretation and potential court action – back to ultra vires. Joshua Toulmin Smith [C1], in his rallying cry against centralisation called for legislation to only set out basic principles within which we could act and avoid the centralising and litigious tendencies of detail, instruction and guidance: he was right. If central government really is to localise, it will take more than one Bill to achieve it: it will take a massive change in attitudes centrally and locally and across the political spectrum.
Post by Colin Copus, Professor of Local Politics, Local Governance Research Unit, De Montfort University
[C1]There isn’t one, but you could refer to his book: Toulmin-Smtih, J., Local Government and Centralisation: The Characteristics of Each; and its Practical Tendencies, As affecting Social, Moral and political Welfare and Progress, Including Comprehensive Outlines of the English Constitution, Elibron Classics Series, 2005.