United Kingdom

United Kingdom - Monitoring report

Date of the monitoring visit: from 29 to 31 May 2013 and from 5 to 7 November 2013
Report adopted on: 26 March 2014

This is the second report on the state of local and regional democracy in the United Kingdom and follows up on Recommendation 49 of 1998. The report expresses satisfaction that the United Kingdom is, in general, in compliance with the obligations taken under the Charter and that, compared to 1998, the situation has improved, notably through the devolution process. As regards consultation procedures, the report welcomes the successful partnership approach adopted in Scotland, Wales and Northern Ireland. It notes that there are some areas of concern, particularly as regards the financial resources of local authorities, their limited taxing powers and their dependence on government grants. It also underlines that there are ambiguities that need to be addressed in areas such as the lack of recognition of the right to local self-government in the law beyond the general powers granted by the Localism Act 2011, and the limitation of local authorities’ discretion to manage local affairs through the intervention by various ministries of the central government.


The rapporteurs, aware of the difficulty of anchoring local self-government in constitutional law, given the legislative framework of the country, invite the UK Government to consider the various existing codification proposals for local government in England in order to strengthen the position of local authorities. They recommend that the UK Government take measures to reduce the financial burden on local authorities arising from budget cuts and indebtedness, and reinforce the role of elected office holders by improving their status. They encourage the UK authorities to update their declaration concerning the scope of the application of the Charter to include the Greater London Authority as well as Northern Ireland. Finally, they invite the Government to consider the ratification of other instruments related to the Charter, namely the Convention on the Participation of Foreigners in Public Life at Local Level, the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority and the Additional Protocol to the European Outline Convention on Trans-frontier Co-operation between Territorial Communities or Authorities.

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Article ratified Ratified with reservation Non ratified
Compliance Partial compliance Non compliance To be determined
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Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.


The current situation of local government seems to be the result of historical evolution, various layers of reform and ad hoc measures rather than an overall national scheme or system of local government. At present, the United Kingdom does not have a written constitution, or any specific legal guarantees for the principles of local self-government. Although it has ratified the Charter without any reservation (see below, Article 12), the Charter’s principles are neither expressly nor specifically incorporated in legislation. The principles are neither directly applicable nor can local authorities refer to it in case of judicial review. Courts might use the Charter, as should the legislator, as an aid to interpretation regarding domestic legislation in local affairs.

 

Placing the Charter on a statutory basis would be a move towards such a constitution and would represent a fundamental and historic shift in the constitutional arrangements based upon constitutional conventions. Devolution (in particular the debate on the future of Scotland) and the new government’s commitment to “localism” have started a debate on the codification of local government legislation.

 

In 2011, the new Political and Constitutional Reform Committee of the House of Commons (PCRC) undertook an inquiry into “Prospects for Codifying the Relationship between Central and Local Government” in England, in which the prospects for “incorporating” the Charter have also been considered. In its report, the Committee presented a draft Code for illustrating the essential elements necessary for a new relationship between central and local government. It recommended a statutory status for such a Code and proposed to enhance this status by a degree of “entrenchment”. The Committee also suggested some “next steps” in order to achieve the adoption of such a Code. In its response in May 2013, the Government commented sceptically on the proposal of an entrenched code as this would “support an increasingly litigious culture”.

 

Constitutional or legislative entrenchment of local government is not easy in the UK legal system(s). An important parallel might be drawn with the European Convention on Human Rights which was incorporated by the Human Rights Act 1998 and thus become enforceable although not really entrenched as its repeal by Parliament is still possible. In its Report, the PCRC referred to the option of incorporation of the Charter, rejecting it in favour of the proposed draft Code which is said to be in line with the Charter’s principles while at the same time better reflecting the specific features of the situation in the UK.

 

The rapporteurs would recall, however, that while the UK is already bound by the Charter (including its claim for entrenchment “where practicable”), the differences between the four systems of local government in the country are considerable and destined to increase due to different priorities and instruments. If this process continues, a “Magna Charta” on local government as a common frame of and for the four systems might make sense in order to give common and fundamental principles visibility. The Charter provides such a frame.

 

As in the other parts of the country, there is no constitutional protection of local government in Scotland and the principle of subsidiarity is not defined in domestic legislation. The Scotland Act does not recognise the right to local self-government. In strictly legal terms, the status, shape and powers of local authorities are therefore totally dependent on the Scottish Parliament which has the power to unilaterally impose changes. Effective relationships between local government and the Scottish government are therefore mainly based on good will and trust. During the visit, however, the Scottish Minister for Local Government and Planning has repeatedly underlined the importance of the “partnership approach” and the Government’s intention to give local self-government constitutional protection in case of Scottish independence.

 

In the context of the debate on the proposed Community Empowerment (Scotland) Bill, COSLA had suggested to use the Bill for embedding local governance in legislation and to give a statutory basis to the right to local self-government. Interestingly, the proposal suggests using the Charter for that purpose, replicating the model of integration of the ECHR into the UK domestic legal system. The Human Rights Act 1998 placed obligations on public bodies to observe the ECHR provisions. It is also binding for legislation. COSLA representatives informed the Congress delegation during the visit that, in a similar way, the provisions of the Additional Protocol could provide an elegant way of promoting a comprehensive approach to protect citizen rights at the local level and taking a first step to implement the Charter on which the Protocol is based. According to COSLA, the Community Empowerment (Scotland) Bill could and should be used for putting the right to local self-government on a statutory footing. This would set an important precedent. Concretely, a statutory duty on Ministers might be introduced in the Bill whereby Ministers of the Scottish Government, while exercising their functions, must observe and promote the principles and provisions of the Charter. This would be practically feasible as placing a duty on Scottish Ministers, which refers to external treaties, would be similar to the approach already used for placing the ECHR in UK legislation. Although this is no constitutional protection, it would reduce the chance for Scottish legislation on local government to be (unilaterally) revoked.

 

Local authorities in Wales provide statutory services as set out in legislation and are empowered by laws made at the UK and Welsh levels to provide other services. Although the services provided by local authorities are subject to laws, strategies and targets set and monitored mainly by the Welsh Government, local authorities do have discretion in providing and delivering those services in their areas. The responsibilities of local authorities are quite extensive and listed in numerous pieces of primary and secondary legislation passed by the UK Parliament and the National Assembly for Wales.

 

Constitutional or legislative recognition and entrenchment of (the right to) local self-government does not exist in the UK. Nor are the principles expressly incorporated into domestic legislation. In the Rapporteurs’ opinion, compliance with the Charter means more than (implicit) compliance with its spirit. By introducing a “general power” for local authorities, the Localism Act 2011 has taken an important step into this direction in England, but the Charter requirements are not completely satisfied in terms of compliance. By contrast in Scotland, the issue of constitutional or legislative protection via a new Scotland Act depends on the outcome of the referendum.

 

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.


Consult reply indicated at article 2

Article 3.2
Concept of local self government - Article ratified

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.


Consult reply indicated at article 2

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.


The previous Congress Recommendation (1998) admitted that it would be “difficult to develop a general competence of local government in all fields” although the distinction between local government's own tasks and tasks delegated [were to] be better clarified”. In UK tradition, detailed sectorial legislation is used to identify the authorities on which powers are directly conferred upon. As there is no foundation in a written Constitution, there is also no pre-established “list” of subject matters. As seen above, successive reforms have produced a complex set of bodies which are responsible for delivering public services at the local level. Furthermore, they have general powers, such as recruiting staff and acquiring and managing property. They also have powers to adopt bye-laws, in general terms as well as regarding specific services.

 

England

 

Since 1998, Parliament has continued to confer specific and separate powers and duties to local authorities in important areas of public affairs. In England local authorities have the following competences:

County councils are responsible for providing schools, social services, and public transport services, highways, libraries and youth services (in some counties also fire and rescue services).

District councils are responsible for providing local services, including council housing, gyms and leisure facilities, local planning, recycling and refuse collection, licensing, building control and street cleaning.

Unitary authorities in England are responsible for all local services.

The Greater London Authority (GLA) shares responsibilities with the London Boroughs in the areas of economic development transport, health, police, fire and emergency planning, environment, including waste and climate change, culture, housing and planning.

 

Councils provide over 700 services altogether. Most services are mandatory (their performance is a duty by law), such as operating an alcohol licensing regime under the Licensing Act 2003. Some mandatory functions are tightly controlled by central government, resulting in a similar level of service across the country (e.g. the administration of housing benefit). Other requirements such as the library function leave councils with some discretion over the level and type of service they provide. Some council services and functions are discretionary. They range from large economic regeneration projects to the removal of wasp nests. Councils have a general power to charge for discretionary services; they can also charge for arts and entertainment activities, sport and recreational facilities.

 

In parallel, further authorities operate and provide services at the local level, each with different relationships with local authorities, e.g. the National Health Service, Fire and Rescue Authorities, National Park authorities etc. With regard to the components (precepts) of council tax levied and redistributed to other agencies or authorities, it should be noted, that Police and Fire and Rescue services are precepting authorities whilst the National Health Service is not.

 

For England, the latest Localism Act (2011) introduced novelties in three main policy areas:

Local government and communities- the general power of competence for local authorities and the community rights (Community Right to Build, Right to Bid and Right to Challenge);

Planning reforms including changes to planning enforcement rules

Housing reforms including reforms to social housing tenure and council housing finance.

 

Through the Localism Act 2011, Councils were given a “General Power of Competence” allowing them to do “anything that individuals generally may do”. This does not overrule specific legislative curbs on local authority powers contained in other Acts of Parliament, but is intended to clarify potential grey areas where it is unclear if local authorities have the power to undertake certain functions and activities. Thus, the “general power” can only be used to do something which is not already covered by any other statute. By consequence, functions already regulated by statute, such as education, housing and homelessness and highways, can be carried out with only limited discretion.

 

Guidelines and directives from Ministers are frequent. Very often enabling legislation, i.e. secondary legislation and guidance is used. Many interlocutors provided the Rapporteurs with practical examples for detailed regulations and instructions, such as how often local news is to be published and how often rubbish has to be collected. They criticised these regulations as the manifestation of an attitude of paternalism and mistrust vis-à-vis local authorities.

 

Consultation

 

The time-frame is not established in a general way and for all cases, but depends on the concrete subject, in particular on the nature and the possible impact of a proposal. Thus, the period for consultation varies and might range from 2 to 12 weeks (compared to a general period of 12 weeks under the previous government). This uncertainty and time-constraints due to the – possible – short duration of the consultation period might make forms of participatory democracy within the local authority concerned difficult.

 

Scotland

 

The powers of the 32 unitary local authorities in Scotland are conferred by statute and include mandatory powers (providing schooling for 5-16 year olds and social work services), permissive powers (economic development, recreation services), and regulatory powers (trading standards, environmental health and issue licences for taxis and public houses). However, in reality, the distinction between mandatory, permissive and regulatory powers is far from clear cut because specific pieces of Scottish legislation sometimes also require local authorities to have a supporting, complementary or supplementary role to that of the Scottish Government.

 

Scottish Councils deliver a wide range of services to their area; these include housing, local public transport and roads, social work, education for 5-16 year olds, certain social services, power to advance well-being, leisure, parks and recreation, culture, libraries, museums, waste management, environmental protection, health and public safety, licensing, consumer protection, community planning and control, economic development and regeneration, registration (electoral registration) and elections.

 

Regional bodies covering more than one council area continue to deliver some services, such as health, which remains a national government competency managed through regional structures. However, in practice, statutory functions for local government remain defined through a vast and scattered array of legislation which has never been codified. The Scheme of Delegation and Administration used by many councils cover over 100 separate pieces of legislation that either confer powers or impose duties upon them and some of which are over 200 years old. These lists are also constantly evolving to reflect the new provisions passed by the Scottish Parliament.

 

While devolution has led to greater influence and access for local government and allowed for partnerships of interest with the Scottish government, it has not led to further decentralisation of power to local government, and has been argued by some to have reduced the importance and powers of local government. Since devolution, there has been an increase in the concentration of public services. The Labour and Liberal Democrat governments of 1999 and 2003 removed criminal justice from local government and some transport functions (while delivery of services remained local). The 2011 SNP government removed police and fire services. COSLA criticises a strong centralisation agenda of the Scottish government pointing to the creation of single Police and Fire Services (April 2013) as an illustrative example, as these services were previously accountable to, and funded through, local government. This has been strongly criticised by many interlocutors as unnecessary centralisation. The Scottish Government underlined that its policy has been to strengthen the connection between services and local communities through a new, formal relationship with each local authority and, additionally, through the Community Planning Partnership approach (for the connection with the new Fire and Police services).

 

Public service reform in Scotland

 

The Local Government in Scotland Act (2003) provides a framework for the delivery of public services introducing three elements which are particularly important for their improvement:

 

Best Value: The Act places a statutory duty upon local authorities to secure Best Value (by examining how services are delivered and ensuring the most effective and efficient means of delivery);

Power to Advance Well-Being: Local authorities have the discretion to do anything they consider likely to promote or improve the well-being of the area and/or people within that area, provided it is not prohibited by legislation. The Guidance on the Act suggests a number of ways in which this power may be used;

Community Planning: The Act places duties on local authorities to initiate and facilitate Community Planning, involving other public, private and voluntary sector partners in the process. It places a duty on Scottish Ministers to encourage community planning.

 

The focus on fostering innovative practices for the delivery of public service continued with the signature of the Concordat 2007 between the Scottish Government and COSLA. This Concordat created at the time a new culture of mutual accountability across public services for the outcomes that are delivered locally.

 

On the local level, Community Planning Partnerships (CPPs) are statutory bodies under the Scottish local government law bringing together public bodies, voluntary organisations and businesses to agree on strategic priorities for their area, showing how those outcomes will contribute to the Scottish Government's overarching National Outcomes. CPP arrangements are unique in a European context because they are not just consultative processes, but provide community representatives with a direct role in deciding how key local policies are implemented in the area. CPPs were recently reviewed in a “Statement of Ambition” agreed between COSLA and the Scottish Government in April 2012. According to the agreement, new statutory provisions will ensure that all public services and not just local government are required to actively take part in the process (overcoming a weakness in the original design).

 

Single Outcome Agreements (SOAs) are an important part of community planning and focus on the outcomes of public service delivery at local level. Each Community Partnership agrees a Single Outcome Agreement based on 15 key national outcomes using a range of national and local indicators while establishing priorities and use of resources that reflect local circumstances and needs. The Scottish Government and local authorities are equal parties to the SOA and to some extent can hold each other to account for the delivery of specific commitments. The Government considers SOAs as an alternative to ring-fenced conditions.

 

The Scottish Government intends to give legal foundation to some forms of civic or community engagement in the forthcoming Community Empowerment (Scotland) Bill. The Scottish Government and COSLA agree that people should become increasingly engaged in co-producing services or supporting them to take control of local services and assets.

 

Consultation

 

The Scottish Government regularly consults local government, both in terms of drafting policies (Green and White Papers) as well as legislation. Consultation takes different forms, such as public consultation, bilateral meetings, task forces and conferences (either bilateral or with a range of stakeholders). For example, these might be used to formulate a Scottish position on UK or EU legislation, oversee intergovernmental discussions, or monitor legislation and programmes. In spite of existing good practice, local government does not enjoy consultation as a legally defined right. Arrangements emanate instead from non-binding guidance and best practice guidelines at ministerial and civil service level (although some issues like renewable energy and planning do require statutory consultation before change, including with some local authority associations). Consultation is highly variable in terms of the level, the range of issues, and the degree to which it is binding. As a result, consultation with local government can be ad hoc or fail to have an influence on the Scottish government. For major policy changes, the general 12 week consultation period (which mirrors the UK Government’s standard public consultation period) can also be too short (or include holidays, meaning that local government has to anticipate changes well ahead of formal consultation.

 

Wales

 

The general power of competence for local authorities in England, provided for in the Localism Act 2011, does not extend to Welsh local authorities for whom the powers granted under the Local Government Act 2000 remain in place.

 

Local authorities in Wales are responsible for developing, planning and providing a wide range of statutory and discretionary services. They lead local partnerships through Community Strategies, Local Service Boards and other formal arrangements. Certain services, such as education, must be made available according to duties set out in Welsh and UK legislation. Some elements of other services, such as housing standards, transport and highways, environmental health, leisure and tourism, housing and social services, are provided at the discretion of individual authorities.

 

However, the WLGA is critical of the regulatory impact assessment and the process for assessing the impact of new responsibilities under the new primary law-making powers. The impression is that the Welsh Government exercises these powers without much strategic oversight, placing duties on councils that have financial consequences. However, planning policy is largely devolved. Overall, this results in a fragmented, case-by-case approach to decision-making.

 

In terms of efficiency, the efforts of local authorities in Wales to improve performance and management structures has been driven in recent years by the Wales Programme for Improvement (WPI), introduced in Wales in 2002 as statutory guidance to local authorities on how they should discharge their Best Value duties. Greater flexibility for local authorities was introduced in 2005 with the statutory guidance that was issued in that year. The WPI evolved further with the introduction of the Local Government (Wales) Measure 2009.

 

Northern Ireland

 

Northern Ireland councils’ powers and duties include direct, representative and consultative functions. Direct functions enable councils to provide public services in areas such as: recreation, environmental health, waste management, street cleansing, tourism, economic development, consumer protection, the enforcement of building regulations, provision of cemeteries, the issuing of miscellaneous licences, dog control.

 

Representative functions permit councils to nominate representatives in various statutory bodies established to administer regional services such as education, library, health, drainage  and social services,  and fire protection. Consultative functions allow councils to represent the views of their population on the way in which regional services are operated throughout each district. The consultative role covers centrally administered functions such as planning, roads, water and conservation. District councils are to be consulted - either by statutory obligation or by voluntary agreement - regarding proposals which affect their area.

 

The current 26 councils can only take action within the framework provided for in the statute. This framework sets out the duties, functions and responsibilities of councils which may be either mandatory or discretionary. Legislation recently introduced in the Northern Ireland Assembly will provide the new councils, to be established from 1 April 2015, with a general power of competence. This power will enable a council to take any action unless there is a law which expressly prohibits the proposed action.

 

Since the re-organisation of local government in Northern Ireland in 1972, planning has been carried out at central government level with local councils being consulted. After the announcement of a major reform programme for the planning system in Northern Ireland, the Northern Ireland Executive had agreed upon reform proposals in February 2010 and planning powers should have been transferred to local authorities on 1 April 2015. Applications for development in the council area were to be decided by local planning officers working in the 11 new councils; councils were also be responsible for developing an area plan for their area allowing residents of the same area to play a key role. Only key strategic planning applications should have remained with planners in the core Department. However, on 23 October 2013, Northern Ireland Environment Minister Durkan announced that he will not proceed with the Planning Bill currently before the Assembly because of legal concerns regarding amendments to the Bill in June; the Bill is thus blocked. Provisions in the Planning Act (Northern Ireland) 2011 (which has already been passed by the Assembly) will allow for the transfer of the majority of planning functions to local councils.

 

A new statutory duty of community planning is to be introduced in April 2015 in order to promote the development and implementation of a shared vision of councils, statutory bodies and the community sectors and voluntary sectors through a process of cooperation. Northern Ireland Executive agencies and departments will participate in these community planning partnerships. The aim is to create a shared understanding of local issues for better coordination of service delivery and sustainable development.

 

In Northern Ireland, most administration is undertaken by boards, notably Housing Councils, Health Boards and Trusts, Youth and Labour Services, education and library boards. These are currently appointed by the Northern Ireland Executive with representatives from local government; however, usually the elected representatives are left in a minority-position in the boards. Some interlocutors have pointed to the fact that these agencies (“Quangos”) with nominated joint boards are not included in the Local Government Bill, which could be useful in order to strengthen the elected components in the boards.

 

Conclusions as regards compliance with Article 4

 

Although local government certainly has discretion to exercise its functions, the ability of local authorities to discharge their responsibilities sometimes appears to be highly restricted by central government. Guidelines and directives from Ministers are frequent. According to many interlocutors, this is due to the centralist culture of governance across the UK as well as to a certain level of mistrust vis-à-vis local authorities. This is reflected in citizen disinterest and belief that most (important) decisions are anyway taken in London by central government. England is often called one of the most centralised states in Europe with comparatively little autonomy at local government level. Perhaps surprisingly, COSLA comments on the situation in Scotland in almost identical terms: “Scotland is one of the most centralised countries in Europe.” The situation in Wales also shows that local government risks remaining subject to detailed intervention by the devolved government. In Northern Ireland, the effects of the reform will show whether the influence of “Quangos” can be reduced. In the Rapporteurs’ opinion, their relations with local government ought to be included in the Local Government (reform) Bill.

 

The rapporteurs consider that the system is overall in compliance with Article 4; however, they recommend a reduction of governmental powers in all four entities to remove unnecessary burdens from local authorities and to strengthen their autonomy.

 

Regarding consultation of local government, again there is general compliance with the requirements of Article 4. That being said, the rapporteurs would suggest that the relations between the respective governments and local authorities would generally benefit from more institutionalised, uniformly (time-)framed and legally guaranteed consultation arrangements for local government. In particular, any time-frame given should take into account the necessity or opportunity for local authorities to consult their local population, at least regarding important issues.

Article 4.2
Scope of local self government - Article ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.


Consult reply indicated at article 4.1

Article 4.3
Scope of local self government - Article ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.


Consult reply indicated at article 4.1

Article 4.4
Scope of local self government - Article ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.


Consult reply indicated at article 4.1

Article 4.5
Scope of local self government - Article ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 


Consult reply indicated at article 4.1

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 


Consult reply indicated at article 4.1

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 


Local authorities owe their current territorial shape and size to local government legislation. Voluntary mergers are permissible under the law. The Local Government Boundary Commission for England is now responsible for the overall examination of local government boundaries and structures. Established by the Local Democracy, Economic Development and Construction Act 2009, it is responsible for three types of review: electoral reviews, administrative boundary reviews and structural reviews. The latter type is used to establish whether one or more single, all-purpose councils (unitary authorities) should be established in an area instead of the existing two-tier system. The Commission was established on 1 April 2010, when it took on the functions of the Boundary Committee for England.

 

Similar bodies with equivalent functions, despite some differences in the width of the mandate, exist in Scotland, Wales and Northern Ireland: Local Government Boundary Commission for Scotland, Local Democracy and Boundary Commission for Wales and the Local Government Boundaries Commissioner for Northern Ireland.

 

Concerns have been expressed during the meetings with council leaders in Scotland regarding a possible amalgamation of the Shetland Islands with the Highlands which would lead to an increase of already significant travel costs as well as to the perception of a loss of democratic control. According to the Scottish Government there are no plans to amalgamate Shetland and Highland Councils.

 

In Wales, the Local Government (Wales) Measure 2011, passed by the National Assembly in March 2011, gives Welsh Government Ministers wide powers to amalgamate two or three local authority areas and to issue statutory guidance on collaboration. This has been criticised by the WLGA.

 

A major review on territorial organisation of local government is underway in Wales. A Commission on Public Service Governance and Delivery has been established in April 2013 (the Williams Commission) in order to assess the way in which public services are organised and delivered in Wales, and how they may be improved. This broad mandate covers all devolved public services and the Commission will report to the Welsh Government by December 2013. It has been welcomed by the WLGA as an opportunity for reflection on Welsh public services in the context of huge pressures as well as for a debate on local democracy. However, recent comments by the First Minister of Wales that 22 local authorities are ‘unsustainable’ in light of a dramatically changing and challenging financial settlement have furthered speculation about a possible reduction in the number of local authorities in Wales. It seems important that all proposals for structural change are supported by hard evidence. In addition, the WLGA asks for a range of key tests to be carried out as well as for clear assurances by the Welsh Government on retaining local government’s functional integrity as well as for considering the increase of democratic control over other public services such as public health and community services. Thus, according to the WLGA any form of significant reorganisation in Wales would need to be aligned with a review of local democracy.

 

The reform of local government in Northern Ireland will see the reduction from currently 26 councils to 11. Legislation to finalise the boundaries of the new 11 local government districts was approved by the NI Assembly on 12 June 2012.

 

The criteria for review of boundaries within Northern Ireland are established by Article 50 of and Schedule 4 to the Local Government (NI) Act 1972. Within this framework, Local Government Boundaries Act (Northern Ireland) 2008 provided for the appointment of a Local Government Boundaries Commissioner to make recommendations on the boundaries and names of the 11 new districts; a final recommendations report was submitted to the then Minister of the Environment in June 2009. Throughout the process, the recommendations were subject to extensive public consultation.  The Commissioner’s final recommendations with modifications agreed by the Executive were given effect by the Local Government (Boundaries) Order (NI) 2012. The next local government election which will take place on 22 May 2014, together with elections for the European Parliament, will be to the 11 new local government districts; these will become fully operational on 1 April 2015, when the 26 current councils will cease to exist.

 

The regulations and procedures regarding (the change of) local boundaries require consultation of concerned local authorities and, consequently, are in compliance with this article.

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.


England

 

Councils can choose how to organise their governance and operations. Not all local authorities are therefore structured in the same way. The internal organisation of English councils may be structured in three different ways (under the Local Government Act 2000), but the system of local governance was changed from the traditional committee system to the UK style cabinet:

 

The traditional committee system works by delegation to (sub-)committees, each dealing with a separate sector, with ratification by the main body (going back to Local Government Act 1972). No distinction is made between cabinet and backbenchers. This system could be continued in areas with populations below 85.000 residents.

 

The cabinet system as an executive form of governance in which decisions are made by leader elected by the councillors or by a mayor elected by voters, who appoints a cabinet. Each cabinet member (also: executive member) is responsible for a particular sector. Policy decisions are made by the Cabinet on the whole and only major policy such as Local Plans and Local Transport Plans (LTP) need ratification by the full Council. The sectors can be chosen by the leader. For example, in York there is a Leader with Cabinet and the Lord Mayor chairs the Council.

 

An executive governance model with a directly elected Mayor supported by a cabinet and specialist advisers appointed by him is the third main system (not to be confused with the fact that all local authorities have mayors or chairmen as ceremonial/civic figureheads; in some larger and older cities these are called Lord Mayor).

 

In all cases, the full council meeting in which all councillors may vote is the sovereign body. It agrees the budget, sets the policy framework, appoints chief officers and makes fundamental decisions. There are Regulatory Committee and a Licensing as well as a Planning Committee and (sub-)committees for Audit, etc.

 

Councils operating with executive governance arrangements must establish Overview and Scrutiny Committees (OSCs) to ensure that decisions made by the council and its partners are held to account. For councils operating with the committee system, it is discretionary. OSCs reflect the political balance of the councils, but it is up to councils to determine their overview and scrutiny arrangements and there is considerable local variation on the number of committees and their mandate.

 

As to the relationship between elected councillors and officers, there is a clear distinction: Councillors, through decisions of the full council and the executive, set the overall policy of the council. The Cabinet members are usually senior members of the Council and cover specialist portfolios, such as housing/property, regeneration, neighbourhoods, children, adults and finance. They work with the Chief Executive and Corporate Directors in those areas. Senior officers, led by the chief executive and chief officers are responsible for advising the cabinet and scrutiny committees on policy and are responsible for implementing councillors’ decisions and for service performance. Officers have a duty to give unbiased professional advice.

 

The Chief Executive is the statutory Head of Paid Service, responsible for staff appointments. He/she works directly with the Mayor/leader. Corporate Directors are appointed by the Chief Executive and a panel made up of the Mayor/leader and relevant Cabinet members. They are responsible for the delivery of frontline services, staff and financial management.

 

The Localism Act 2011 opens the choice for English councils and local people to decide how their council should be governed. It appears that the determination of own internal administrative structures and their adaptation is possible. Various interlocutors pointed out that speed and quality of decision-making has much improved making local government far more efficient and effective than it was 20 or 30 years ago. Also accountability has generally become more transparent.

 

So far, however, outside London only in 10 Councils referendums have been held on the introduction of directly elected mayors, and only one, Bristol, voted in favour (2012). In the UK there is no enthusiasm for the Mayoral model, despite government attempts to stimulate it. This might be due to the importance given to the value of tradition (creating a kind of “path dependency” with the UK parliamentary model). While some have argued that, as the government attempted to impose elected mayors without sufficient consideration of the impact on the current system, people were not convinced they could make it work. Leaving the choice to councils and people appears the best option.

 

Scotland

 

Each local authority in Scotland is governed by a council. The council is made up of councillors directly elected by the residents in the population of the area they represent (referred to as a council ward). The Leader of the Council is also often the leader of the largest single political grouping in the council.  Each ward will have three or four councillors. In total, there are 1223 elected councillors who are normally elected every 4 years (legislation in 2009 moved local government to two consecutive five-year terms to decouple local government elections from elections to the Scottish Parliament).

 

In the full council meeting all councillors meet to debate and take the key decisions of the Council. These include electing the convenor (equivalent to Mayor in other parts of UK), appointing councillors to all committees and panels, deciding on strategic objectives and corporate policies and setting the annual budget and council tax.

 

However, provisions in the Local Government (Scotland) Act 1973 allow local authorities to devolve most decision-making to a committee, sub-committee or officer of the council. Traditionally, authorities have tended to operate through a structure of committees and sub-committees. There is no requirement for councils to adopt a particular political decision-making and scrutiny structure: it is a matter for each council to decide what the most appropriate structure is for its particular circumstances and context. In recent years, some councils have streamlined their committee structures, by reducing the number of service-specific committees, and instead concentrating on broader, more cross-cutting thematic areas. Others have dispensed with committee structures in favour of executive structures, in which responsibility for most strategic decisions is delegated to an executive of between 5 and 13 councillors. In this kind of structure, it is the role of non-executive elected members to scrutinise the executive’s activities. There are limits to the number of remunerated senior Councillors which entails a form of administrative control.

 

The Chief Executive, who is the head of the Council’s paid staff and its principal adviser on policy matters, has the responsibility for ensuring the efficient, effective and equitable discharge of responsibilities of the Council. This is very different to the situation in many other European countries which have a Mayor with executive functions (‘Mayor in Council’ system) instead of a Leader.

 

Wales

 

Local authorities in Wales have a cabinet-style executive: the dominant political group or coalition makes decisions under the scrutiny of the council as a whole. The Local Government Act 2000 introduced significant changes to the political management arrangements of local authorities. In particular, the Act required authorities to replace the old committee system with a system in which a small, clearly identified executive is responsible for providing leadership and taking decisions, and where new overview and scrutiny committees review the performance of the executive and seek continuous improvement and development. The executive could be organised in three broad forms set out in the Act: a directly-elected mayor, a leader and cabinet model and a directly-elected mayor with a council manager. Most Welsh local authorities adopted the leader and cabinet model. Three authorities had initially adopted a fourth option (a modernised committee structure with enhanced scrutiny powers in place of the cabinet system), but were subsequently required by the Welsh Government to change to a Cabinet system. The Local Government (Wales) Measure 2011 amended the Local Government Act 2000 in respect of the political management structures of local authorities in Wales. There is now only a choice between two options: a leader and a cabinet or an elected mayor and a cabinet system.

 

The Localism Act 2011 requires English and Welsh local authorities to prepare pay policy statements for 2012-13 and for each financial year thereafter. The statements are required to articulate an authority’s own policies towards a range of issues relating to the pay of its workforce, particularly its senior staff and its lowest paid employees.

 

In Wales, pay scales for chief executives of local authorities are determined by each local authority. However, a national negotiating body produces a set of benchmark salaries for authorities of different size and type as a guide. This body is the Joint Negotiating Committee for Chief Executives of Local Authorities. Recently the salaries paid by some Welsh local authorities to their senior officers and chief executives have drawn considerable media attention and criticism.

 

Local authorities are able to determine their internal structures. Directly elected Mayors are the exception in England, but the Cabinet and the Committee systems function through elected councillors and effectively so in all four entities. The Rapporteurs consider that the situation is in compliance with Article 6 of the Charter.

 

 

[1]. Where an authority is called a district council, it will have a chairman and where the authority is a borough or city council it will have a mayor (or a Lord Mayor).

[2]. Liverpool and Leicester decided to move to the mayoral system of governance without a referendum.

[3]. Each local authority elects a civic leader, the Provost or Convenor, who chairs council meetings and acts as a ceremonial figurehead for the area. In the cities of Glasgow, Edinburgh, Aberdeen and Dundee, the Provost is known as the Lord Provost.

[4]. See National Assembly’s 2004 paper ‘The Operation of New Political Management Structures in Local Government’ [http://www.assemblywales.org/n0000000000000000000000000021314.pdf].

[5]. Following the Local Government (Wales) Measure 2011 Merthyr Tydfil (from May 2010), Powys (from May 2011) and Gwynedd (from May 2012) Councils; text available at

[http://wales.gov.uk/topics/localgovernment/publications/lgmeasure11/?lang=en].

[6]. Source [http://www.walesonline.co.uk/news/wales-news/more-50-welsh-council-bosses-3867881].

Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.


Consult reply indicated at article 6.1

Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.


England

 

In the report of 1998, problems were reported regarding discrepancies between the salaries of Council Leaders or other councillors working full time for local authorities and the top officials in the same authorities. It was also reported that Councillors receive very low allowances for their work. (1997 CoE Report, 6). Mayors, Council Leaders and Members have political roles which, in case of backbench members, are not supposed to be full-time jobs. They receive allowances (as opposed to salaries) which are recommended by an independent commission and are the agreed by the full council. According to interlocutors, the allowance is low, but compared to earlier years more in line with the work expected. According to the LGA, a councillor receives £10.000 per year on average, while a Council leader or executive member will receive £34.000 per year (average). By comparison, a Member of Parliament receives a salary of £65.000. For example, in the Borough of Hackney, where Mayor and Cabinet Members devote their full time to their respective roles, their remuneration is at the level of a second or third tier Local Government Officer.

 

The Government’s approach is, on the one hand, to enable councils to determine the amounts to be payable to elected members, having regard to local circumstances and, on the other, to sharpen the accountability by having to appoint a local panel whose members are required to be independent of the council. Thus, each local authority has an Independent Remuneration Panel which provides the council with advice on its Members’ Allowances Scheme and the nature and level of allowances to be paid. The council must have regard to this advice when reviewing or amending its scheme. The considerable differences between different councils in terms of remuneration are explained in that allowances are based on the size of the ward.

 

However, various interlocutors have pointed to difficulties in attracting genuinely qualified people for elected functions in Councils. Some interlocutors have been both part and full-time during their political career. As part of the difficulties, they reported the inflexibility of employers who find it difficult to accommodate the time spent doing council business even in case of part-time councillors. The lack of career structure for people in local government and not having pensions were also mentioned. The pensions issue appears as unfair and sends a wrong message to young people, who might be interested in engaging in politics. Any system should ensure that people are at least not financially disadvantaged at any time when working in public service and for community. Government was criticised by many interlocutors for preferring and promoting a part-time logic of engagement in the councils. This is simply not considered possible due to the workload which is to be managed. Many people already see local authorities as a body which has less impact and meaning as most decisions are taken in London and consider them as functional to the implementation of central government policy.

 

Scotland

 

Until 2007 elected members in Scotland did not receive salaries for their work, even if this was equivalent to a full time job. Councillor salaries were introduced in 2007 in order to widen access as well as to recognise the time and dedicated effort of elected members to their local communities. The basic salary for elected members is now £16.234 per year (frozen since April 2009) which was based on an assessment of the work burden anticipated for an average councillor (it represents around 75% of the average Scottish wage). The Scottish Local Authorities Remuneration Committee has recommended a substantial increase which was declined by government. A full-time engagement is thus often not considered as attractive, in particular for senior members.

 

Wales

 

In Wales, allowances payable to councillors are set by the Independent Remuneration Panel for Wales each year. All local authority members are to be paid an annual basic salary which was set as a maximum amount in previous years; from 2012-13 onwards, the Panel determined that every councillor in Wales would receive the same basic salary in order to achieve consistency. Councils can then decide to pay a certain number of senior salaries to the authority’s leader and deputy leader, to members of the executive, to chairs of committees, to the leader of the largest opposition group, and to leaders of other political groups. The maximum proportion of the membership of a council which can be paid such a senior salary is limited depending on the size of the council. Local authorities are required to publish and maintain an annual Schedule of Member Remuneration on the salaries received by all members.

 

A Code of Conduct for Local Government

 

Codes of Conduct to ensure that the highest standards of behaviour are maintained by local authority councillors and members (such as board members) of certain public bodies are more and more part of the local government landscape in member States.

 

The Standards Board for England, which previously regulated such matters, was abolished under the provisions of the Localism Act 2011. Now, local authorities are required to draw up their own codes of conduct for their councillors, consistent with criteria set out in the Localism Act 2011 and in line with the seven “Nolan principles” for public life (selflessness, integrity, objectivity, accountability, openness, honesty, leadership).

 

A Code of Conduct was introduced in Scotland with the Ethical Standards in Public Life etc. (Scotland) Act 2000. A Public Standards Commissioner (formerly the office of the Chief Investigating Officer) receives complaints by any citizen or resident about non-compliance and the Standards Commission for Scotland shall hold hearings into alleged breaches of the Codes.

 

For local government in Wales, Part III of the Local Government Act 2000 established a new ethical framework requiring all councils to adopt of conduct for their members (Section 51). The Local Authorities (Model Code of Conduct) (Wales) Order 2008 sets out what is expected of members and co-opted members of relevant authorities in Wales. Every local authority must have a Standards Committee responsible for adopting a local code of conduct, for monitoring conduct, and for adjudicating on cases of misconduct. All councillors are required to sign the code of conduct to ensure they uphold the highest standards. The Public Services Ombudsman for Wales will hear written complaints about alleged cases of misconduct and can take several courses of action including referral of cases to the Adjudication Panel for Wales. In September 2012, the Public Ombudsman issued a second guidance on the Code of Conduct.

 

Another problem mentioned in the 1998 Congress report as discriminatory practice was unequal treatment related to “surcharges”. Unlike central Government officials, local elected representatives and appointed staff could be held financially responsible for their decisions, not only if they went against the norm but also if they were guilty of "gross negligence". It seems that the situation has changed for the better, as interlocutors told the Congress delegation that surcharges no longer apply in local government in England. The sole sanction against Members under the Localism Act 2011 is criminal prosecution for any failure to declare a “disclosable pecuniary interest, without reasonable excuse, on an interest form or to declare full or relevant interest at meetings. These interests include matters relating to a Member, or their spouse/partner, related to employment, trade or vocation; sponsorship to carry out role as a Member; election expenses; contracts with the Council; beneficial interest in a property.

 

In the rapporteurs’ opinion, the situation is overall in compliance with Article 7. However, the work of executive councillors should be re-evaluated so that their status corresponds better to their responsibilities. While the status and conditions of elected representatives seem to have slightly improved compared to 1998, in particular regarding allowances, there are concerns that engagement in councils, in particular for the younger generation, is not attractive due to economic disadvantages for full-time councillors and an unequal distribution of workload. A part-time model might work for backbenchers, but definitively not as a general model.

Article 7.2
Conditions under which responsibilities at local level are exercised - Article ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.


Consult reply indicated at article 7.1 

Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.


Consult reply indicated at article 7.1

Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.


England

 

In the UK system there is no direct equivalent to administrative supervision and control of local authorities by specific institutions or procedures. External controls include specific administrative controls by ministers or other bodies, financial control by external auditors, legal control by the courts and controls by ombudsmen on grounds of maladministration.

 

Legal control by the courts may be exercised, if a statute makes a direct provision for an appeal to a court against a decision of a local authority, such as licensing, school-choice and child protection decision-making. Much more common is the exercise by the courts of their inherent power of judicial review. It can be considered a supervisory jurisdiction over local authorities (and other public bodies) by means of which any person with locus standi can challenge the validity of a local authority act or decision being ultra vires. The grounds may be substantive (no powers for action), based on procedural error or on irrationality; also a breach of the ECHR can be used as the basic of challenge (according to the Human Rights Act). These options for judicial challenge guarantee the respect of the Rule of Law as well as for Human Rights in the activities of local authorities.

 

Ministers who retain an overarching responsibility for sectors, such as school education, social services and transport, still maintain some powers to influence and steer the activities of local authorities formally responsible. These forms, often framed (by Ministers) as “partnership”, lead to overlap and sharing of responsibilities. Central government has the authority to intervene in instances where there have been concerns over childcare, education or the management of any failing council. The Government underlines that intervention in a local authority is rare and only as a last resort; there have been only three interventions by the Secretary of State in the last 10 years on corporate management failings. There are regular central government inspections of schools, as well as children and adults social services, e.g. through the Care Quality Commission (CQC) as the regulating body for adult care services, the Office for Standards in Education. Children’s Services and Skills (Ofsted) is an independent body reporting to Parliament which carries out inspections on site in local authorities; their inspection frameworks are under revision and will be replaced by a single one for child protection and looked after children.

 

During these controls and inspections, both legal compliance and efficiency of local government are monitored. Various interlocutors expressed the feeling that these controls are aimed at reducing and controlling – and thus limiting – powers, but they also aim to ensure high quality of service to the community and safeguard vulnerable people. In 2007, 1100 performance indicators were counted for reporting to central government. Although the number of data returns which local authorities are required to submit was significantly reduced when the National Indicator set was replaced with the Single Data list in April 2011), this may still raise the question of whether accountability is foremost guaranteed by central authority or through democratic means by the local people.

 

Wales

 

In Wales, a case has been reported in which executive functions of a council have been taken over by commissioners appointed by the Welsh Government due to political in-fighting and a history of poor performance (Isle of Anglesey Council).

 

Section 2 of the Local Government (Wales) Measure 2009 requires Welsh local authorities to make arrangements to secure continuous improvement in the exercise of their functions. Section 28 of the Measure provides Ministers with powers of assistance, while section 29 permits Ministers to intervene in and direct a local authority which is failing, or is at risk of failing to comply with the Measure. They may also direct a local authority to collaborate with another. These powers go beyond the power of the Secretary of State in the Local Government Act 1999.

 

After decades of infighting and political instability in the Isle of Anglesey Council, the Welsh Government Minister for Local Government decided to suspend the executive functions of the Council in May 2011 and install five commissioners to run affairs. Despite being the most severe intervention into an individual local authority in the history of Welsh local government, the move was supported by the WLGA, who, in its capacity as an improvement body, worked with the Council in response to the recommendations of the Wales Audit Office’s Corporate Governance Inspection in 2009. Local Government Elections were suspended for one year with the election taking place in May 2013, along with the return of executive functions. Since then internal functions within the Council have improved.

 

In addition to the case of Anglesey, the Welsh Government has introduced ‘special measures’ and commissioners or ‘Ministerial intervention boards’ in six other Welsh local authorities to address what it perceives as serious shortcomings in education. While between 1999 and 2008 only one Local Education Authority in Wales was placed into special measures requiring intervention, between 2011 and 2013, some seven authorities have been in this category; out of these authorities five are some of the smallest in population terms which suggests that scale does appear to have a major impact on education performance.

 

Local government audit

 

The extent and purpose of top-down administrative supervision has been an issue for both English and Welsh local authorities for many years, and “the Audit Commission’s role in relation to ‘value for money’ is probably to be seen as a form of supervision, even though normally this leads to public reporting, rather than any legal action against the supervised authority”.

 

Recommendations (1998) regarding administrative supervision have expressed concern on the role of the Audit Commission in England and Wales and doubts about its independence from central Government; pointing to the dangers of combining auditing with judgments of effectiveness. This referred to the duty of the Audit Commission to report on the achievement of “Best Value” objectives by local authorities. In England there was also a system of overall monitoring (Comprehensive Performance Assessment, since 2009: Comprehensive Area Assessment), which has been abolished by the coalition Government. Also the Audit Commission in England will be abolished by April 2015 and the Accounts Commission in Scotland is (to be) abolished in early 2014. Central responsibility will be shifted to local authorities which have to contract out to private accountants while continue with the monitoring of “Value for Money”.

 

Scotland

 

External audit is compulsory and is carried out by a range of audit and scrutiny bodies including the Accounts Commission for Scotland. All of the reports are available online, including the latest annual audit overview covering key local government issues. Performance improvement, self‑evaluation, and other improvement resources are facilitated by a specific agency: the Improvement Service, which has developed a new benchmarking framework allowing significant cost and performance comparison across the 32 Councils.

 

Wales

 

Since 2004, responsibility for the audit of Welsh local authorities has been transferred to the Auditor General for Wales. In Wales, the Local Government (Wales) Measure 2009 makes provision to ensure greater collaboration between local government auditors, regulators and inspectors so as to maximise value. It introduced significant changes to performance and inspection work in local government which requires the Auditor General for Wales to undertake an overall improvement assessment for each council. This assessment is undertaken in collaboration with Estyn and Care and Social Services Inspectorate Wales. The Inspection Wales Programme has established a Development Group which has tasks that include planning, leading and coordinating further developments in joint working under the Measure.

 

Public body decisions are also subject to judicial review which may also be interpreted as a kind of external supervision. In a UK context, judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. Relating exclusively to the legality of the decision or action, this kind of supervision does not seek to influence or reduce local authority powers. It shall guarantee that public bodies stay within their statutory powers, but keeping them (and the use of their resources) focused on these, it might also lead to more efficiency.

 

Accountability: complaints system and Local Government Ombudsman

 

In England, the Local Government Ombudsman investigates complaints from individuals regarding “injustice in consequence of maladministration” caused by acts and decisions of local authorities. Today, the mandate includes a duty to scrutinise “service failure” as well as the ability to initiate investigations themselves. Complaints regarding Council services can be addressed to the Ward Councillor or to the Mayor; complaints on other matters might be referred to the inspection bodies of central government, such as Ofsted. Residents can make a formal complaint to the Council about services that have either been provided or denied. The complaints process provides for three stages. If these are exhausted, and the complainant is still unsatisfied with the response, a complaint to the Local Government Ombudsman is possible. The latter will assess any complaint independently. In case of a complaint against the conduct of a Councillor, a complaint can be made to the Council’s Standards Committee for investigation. The Information Commissioner is responsible for queries under the Freedom of Information Act. Structurally, in Scotland and Wales the function has been integrated into the broader offices of the Scottish Public Services Ombudsman and the Public Services Ombudsman for Wales. Also the Northern Ireland Ombudsman is a broader office, dealing with complaints of maladministration by government and public bodies; however, he has no role in investigating individual ethical conduct by councillors.

 

The “Partnership Approach”

 

The rapporteurs have the impression that a “partnership approach” regarding relations between local and devolved government is emphasised in Scotland and in Wales compared to a more prescriptive approach adopted in England.

 

The Local Government in Scotland Act 2003 gave a statutory basis to partnership working between all agencies (such as health boards, benefits agencies, further and higher education institutions) responsible for public service delivery in an area. This partnership approach is called Community Planning. To develop this, the Act creates a new statutory body alongside the Local Authority, the Community Planning Partnership (CPP), in each municipality. Scottish local authorities are responsible for initiating, facilitating and maintaining Community Planning.

 

In Wales, relations between the Welsh Government and local authorities are governed by the 2008 Local Government Partnership Scheme, as required by the Government of Wales Act 2006 and the November 2009 agreement, ‘A new understanding between the Welsh Assembly Government and Local Government in Wales’. The Partnership Scheme reaffirms the commitment of both levels of government to “working together in partnership, within an atmosphere of mutual trust and respect, recognising the value and legitimacy of the role both have to play in the governance of Wales”. In practice however, the WLGA underlines that the extent of compliance depends on the differing administrations and the attitude of Ministers. (Legal) certainty could be strengthened in order to use the full potential of such an approach and to avoid criticism of a top down-approach in disguise.

 

The ‘Simpson review’ of local government published by the Welsh Government made 21 recommendations on how local government services could best be delivered in Wales in the coming years, with a heavy focus on collaboration between councils. The report led to the “Compact for Change” between the Welsh Government and Welsh local government (December 2011) in order to formalise a partnership approach across a range of council services, and to standardise collaboration in order to improve delivery and outcomes.

 

The institutional instrument for consolidating the partnership approach was the “Statutory Partnership Council” for Wales, set up (as required by the Government of Wales Act 2006) in 2009. It is an advisory body to promote cooperation between the Welsh Government and local government, as well as for the governance of central-local relations. It meets around three times a year and includes Welsh Government Ministers, representatives for the 22 unitary authorities, community and town councils, National Park Authorities and Fire and Rescue Authorities. The Council may also establish committees and working groups. The WLGA considers the Council an effective forum for discussion and joint working, in particular in promoting cross-cutting themes such as equality of opportunity and sustainable development. However, in 2011 membership was expanded to include other public sector partners, while the Council’s focus moved to reform. At the same time the forum for discussing finances was disbanded, until reinstated in June 2013. These changes risk weakening the voice of local government.

 

Questions regarding the sustainability of such collaborative partnership approach have been raised with the recent intensification of the debate on local government reorganisation in Wales (following the establishment of the Williams Commission looking at Public Service Governance and Delivery). Governance and accountability of public services are inevitably affected by the complexity of local public services in Wales, in terms of performance management and planning regimes and the variety of local and regional collaborative and partnership arrangements. Agreement on a limited number of clear and focused priorities seems necessary with the overarching strategic direction determined by the Welsh Government, leaving maximum flexibility and autonomy to local authorities in the determination of local priorities and delivery.

 

Modelled on the experience in Wales, a Partnership Panel is to be established in Northern Ireland for the coordination across various Departments and with local government. The Local Government Bill, which was introduced in the Assembly on 23 September 2013 and which is currently at Committee Stage, provides for the establishment of such a partnership panel in Clause 106. Its members will comprise Northern Ireland Ministers and council members. Before appointing council members, the Department will be required to consult appropriate bodies that are representative of local government (at this stage the NILGA might become involved). The panel’s functions will be to advise the Northern Ireland Ministers on matters affecting their functions; make representations on matters affecting, or of concern to, those involved in local government in Northern Ireland; and give advice to those who are involved in local government in Northern Ireland.

 

In the rapporteurs’ opinion, the situation is overall in compliance with Article 7. However, the work of executive councillors should be re-evaluated so that their status corresponds better to their responsibilities. While the status and conditions of elected representatives seem to have slightly improved compared to 1998, in particular regarding allowances, there are concerns that engagement in councils, in particular for the younger generation, is not attractive due to economic disadvantages for full-time councillors and an unequal distribution of workload. A part-time model might work for backbenchers, but definitively not as a general model.

 

As regards audit, the Standard Boards have been abolished and the Audit Commission in England will be abolished in 2015; independent external audit will be provided for at a local level by private audit firms and local authorities now adopt their own codes of conduct for councillors. There are clear rules on conflict of interests and the situation can be considered to be satisfactory.

 

In the UK, there is no general form of comprehensive and concentrated administrative supervision. However, Ministries and other bodies that oversee the activities of local authorities have inspection powers which, in some cases, considerably influence or limit the latter’s freedom and discretion in carrying out services. They do this through reporting duties and active intervention in details of local affairs. This being said, the system is generally in compliance regarding supervision. It also seems that the procedures and guarantees in case of intervention are in line with the Charter principles.

 

It will be interesting to see, whether and how the partnership approach and the co-operation experiences in Scotland, Wales and Northern Ireland will be considered in the current debate on the relations between central government and English local authorities.

 

Article 8.2
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.


Consult reply indicated at article 8.1

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.


Consult reply indicated at article 8.1

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.


England

 

Local government accounts for about a quarter of all public spending in the UK. Net current expenditure in 2012-13 was £112 billion. The three main sources of income for local government in England are government grants, council tax and redistributed business rates. Local government’s 2010-11 budgeted revenue expenditure (not the same as net current expenditure) of £98 billion in 2012-13was budgeted to be financed as follows:

 

Government grants = £57,657m in 2010-11 (55%), £56,237m in 2011-12 (57%), £46,765m in 2012-13 (50%)

Council tax = £26,254m in 2010-11 (25%), £26,451m in 2011-12 (27%), £26,715m in 2012-13 (28%)

Redistributed rates = £21,517m in 2010-11 (21%), £19,017m in 2011-12 (19%), £23,129m in 2012-13 (25%)

 

Councils also receive income from returns on borrowing and investments, interest and capital receipts, sales, fees and charges and council rents.

 

Council tax makes up the majority of the difference between a council’s planned budget and its central funding. In 2011-12, the government began making extra funding available to councils which froze their council tax with the objective of making local authorities more likely to freeze tax levels. Council tax freeze grants have been available in every year since and will continue up to and including 2015-16. The total Government funding for a freeze over the period of time covering 2011-12 to 2015-16 is up to £5.2billion. Under the Localism Act 2011, councils are required to hold a referendum on council tax increases if they are above a certain level as proposed by the Government and approved by the House of Commons. As Council tax accounts for only one quarter of local income; a 4% increase in council tax is needed to achieve a 1% increase in total local spending. It has also been argued by some in local government that council tax is not really a local tax because, for all practical purposes, the government decides it. However, the government’s position is that local authorities have had a choice of whether to (i) freeze council tax and take the Government grant; (ii) increase council tax up to the level of the referendum threshold, or (iii) increase it above the threshold and hold a referendum for local people to either approve or veto the tax increase. In practice, the referendum obligation has operated as an effective deterrent against the raise of council tax as no authorities have so far chosen to hold a council tax referendum. In times of financial and economic crisis, it is politically hardly possible to find popular support for a raise of (council) taxes. Councils can also not revalue properties in their local area (leading to discrepancies between the market price-level and the property value). There are no further tax-raising powers, such as a tourist tax or similar.

 

Councils collect business rates (officially called National Non-Domestic Rates) on behalf of central government and pay them into a central account controlled by the Department for Communities and Local Government. These funds are then redistributed back to councils by the department on a per head basis. This reflects the basis of distribution prior to 2006-07; after that business rates were distributed on the same basis as the Revenue Support Grant (RSG). Councils do not set business rate levels, they are centrally determined. The Government has now introduced the business rates retention scheme. Operating from 1 April 2013, this scheme sees 50% of business rates paid to central government and 50% of the business rates retained by local authorities. The scheme also allows for local authorities to keep a proportion of any business rates growth, although – according to the LGA – some authorities will be allowed to keep much less than this because of the complicated arrangements for funding the scheme as a whole.

 

A fundamental question in relation to Article 9 of the Charter is whether local government will have adequate (own) financial resources and whether these are commensurate with its functions.

 

Following the 2010 General Election the new Coalition Government urgently began to tackle the UK’s “record debts”. This has led to continuous cuts in Government spending since 2010, including cuts to the grants given to local government by central government. Overall these cuts equate to a real terms reduction of at least 32% over the last four year period of the Comprehensive Spending Review (CSR). According to all interlocutors from local authorities and publications of the LGA, “this is the toughest local government financial settlement in living memory”. Some councils face more than 16% of reduction in the amount of money they receive from the Government. The financial cuts mean that City of York Council faces cuts of about £60 million from the budget, over an 8 year period. Leeds is very much in the same financial position – it is just a matter of scale – they will need to make cuts to the tune of a staggering £50 million next year.

 

Even more worrying is that these changes are structural rather than temporary, as the next CSR (2015) will start from the spending control total resulting from all these changes. It appears that the cuts have also been decided unilaterally by central government, between the Ministries, without the involvement of local authorities or the LGA.

 

The Government “de-ring-fenced” some of these grants in order to give local government more freedom over how money is spent in individual areas. In 2013/14, ring-fenced grants amounted to nearly two thirds out of a total of £88,953 million Central government grants. This continues to push local government to find further efficiencies and deliver better value for money through structural changes and innovations.

 

The delegation heard that, in April 2013, central government delegated three services to local authorities: Council Tax benefit Localisation, Social Fund and Children-on-Remand. In each case, local authorities were asked to take over additional responsibility and control costs, leading to the transfer of a significant financial risk as these services are demand dependant. This looks contrary even to the New Burdens Doctrine guidance published in 2011, according to which “all new burdens on local authorities must be properly assessed and fully funded by the relevant (government) department.”

 

In order to support local service transformation, the Government has introduced a number of measures which include the £3.8 billion Better Care Fund for the integration of the provision of health and social care, a £300 million transformation fund for councils to fund up-front costs of service re-engineering, and the establishment of the Public Service Transformation Network. With regard to article 9.3 (financial resources deriving from the local level), it can be observed that councils have responded to the localisation of resources, in particular to the recent financial incentives, including the localisation of business rates, City Deal incentives (agreements between the government and cities to increase the latter’s powers) and the discretion to determine council and business tax discount, in a positive way. However, as most of these financial reforms are quite recent, it is not yet possible to assess their full impact in practice.

 

The distribution of central government funding to local authorities is determined using complex distribution formulae, taking into account population and other demographic factors as well as the ability to raise revenues locally from the property tax base. The Standard Spending Assessment (SSA) was designed to provide a notional spending allocation for each local authority taking into account their needs and population. The aim was to ensure that, for the same level of services, each authority should be able to set the same average council tax, having regard to their respective property tax base (i.e. relative values). This was the original aim; by the mid-1990's Government made it clear that SSAs were simply a measure used to distribute grants. This was consolidated in 2003-04 when SSAs were replaced with Formula Spending Shares. It was replaced from 2006-07 onwards by the ‘four block’ model which contained separate components linked to population (central share), needs including deprivation and relative costs pressures (relative need amount), respective residential property tax bases (relative resource amount) and a fourth block (damping) to guarantee a minimum level of change year on year.

 

In recent years, as a result of the reduction in expenditure to meet the Government’s spending targets, damping to reduce the year-on-year volatility of allocations between authorities has become more pronounced. This places authorities in “bands” based on their relative reliance on grant funding. As a result, one London Borough, which was entitled to a 9% grant increase under the needs formula in 2013-14, received the same percentage reduction in grant as another Borough which, on the basis of the formula, should have had a 31% grant reduction. From 2014-15 onwards there will be an even greater focus on limiting variability and giving all authorities undertaking the same services similar percentage cuts – and the link with needs/population/demographic changes will be further reduced. According to interlocutors, local grant allocations will not be recalculated on the basis of updated needs assessments until 2020/21.

 

There are few budgetary restrictions. Indebtedness and deficits are mitigated by the Prudential Code which received statutory force by the Local Government Act 2003 and subsequent amendments. Local authorities can only borrow long-term to fund capital investment. Operating costs are funded from day-to-day resources through an active treasury management regime. Local authorities are allowed to borrow under the Prudential Code, meaning the amount of debt and other liabilities do not have an upper limit but must be affordable and prudential. The Prudential Code sets out indicators relating to affordability, sustainability and prudence to be respected. It does not apply, however, in all areas. For example, the amount of borrowing councils can undertake for the purpose of increasing local social housing supply is capped by the Government, as part of the Government’s deficit reduction policies. The LGA, London Councils and the GLA are, however, lobbying for this system to be changed to allow more investment in housing.

 

Scotland

 

In Scotland, local government is allocated around one third of the devolved budget of around £33 billion, giving them significant procurement power. Moreover, despite substantial staff reductions over the recent years, local authorities remain one of Scotland’s biggest employers. With over 248 200 staff, they employ around 45% of the public workforce in Scotland and provide 1 in 10 jobs in Scotland overall.

 

In terms of resources, however, councils are very dependent on the Scottish Government. Budgets are not statutorily protected and councils have little statutory ability to influence the budgets they receive. But, most importantly, councils raise only a small amount of their resources locally: 80‑85% of budgets come from the government, with only 15-20% raised through local taxation (council tax). Although there are negotiations with COSLA for the local government budget, ultimately the power rests with the Scottish Government.

 

The 2012-13 local government settlement was £11,5 billion (£10,9 billion in revenue funding and £0,6 billion in capital grant funding). Income generated from council tax was £1,9 billion. These figures do not include revenue from sources such as housing rents and local charges. Councils are able to borrow (under certain constraints) under the Local Government (Scotland) Act 1973. Interlocutors have underlined the importance of European funding, in particular for the infrastructure.

 

In terms of expenditure, education accounts for nearly 40% of total expenditure. A further 25% is spent on social work (but this is expected to increase rapidly due to the ageing of the population). The remainder is spent on other services including roads and transport, planning and development and culture related areas.

 

According to interlocutors, formal ring-fencing has been reduced, leaving definitively more choice in spending, but councils still have significantly less ability to raise and control resources locally. The Rapporteurs would suggest that, in future, the focus should shift to the joint improvement of outcomes. This would allow for an assessment of the services delivered, and leave more room for discretion to councils on how to perform them.

 

However, also in Scotland, local government budgets have been reduced in the wake of the economic and financial crisis. The crisis and long term trends such as population ageing mean that resources are diminishing while demand for public services is growing rapidly. In the 2007, COSLA and the Scottish Government signed the Concordat, freezing council tax and agreeing upon additional funding to compensate for it. This has been criticised as a voluntary renouncement of own-decision-making powers in financial issues. Today there is ongoing discussion on the replacement of the current council tax system with a fairer local tax, based on ability to pay. Proposals for the introduction of a Local Income Tax have been dropped in 2008.

 

Wales

 

Local authorities in Wales receive the majority of their funding in the form of a revenue grant from the Welsh Government (RSG). The RSG is the main component of the local government revenue settlement, which comprises RSG and non-domestic rate income, which together are known as Aggregate External Finance (around 80% of local government finance). The remaining 20% comes from non-domestic rates (a national tax locally set and collected), council tax and income raised from fees and charges. The amount of council tax people pay depends on the value of their home.

 

Local authorities decide how the money from RSG as well as some additional capital funding should be spent according to their needs and priorities. They also receive a number of ring-fenced grants, both revenue and capital, which must be spent on specific activities (e.g. grants for social care, for bus shelters or for school uniforms). The RSG funding is shared out between authorities on the basis of a population-based distribution formula. The formula is kept under review by the Distribution Sub Group, a working group under the Partnership Council’s Consultative Forum on Finance.

 

In contrast to other parts of the public sector, local government has been financially sound over the 17 year period of unitary structures. Since 1996 no authority has failed to set a budget or has gone into deficit. Council tax collection rates in Wales are at a level of 96.7% of council tax billed.

 

The Welsh Government is heavily reliant on providing grants for specific purposes and (around 12% of council spend) regularises council’s abilities to charge for certain services. There is a growing expectation on local authorities to deliver more with less resources and, increasingly, local government needs a more flexible financial framework. The WLGA warns that this approach is unsustainable and will most probably worsen in the coming years, given the bleak financial outlook for local government in Wales (£ 175 million reduction for 2014/15, a £ 460 million reduction by the end of 2015/16).

 

A key issue is how to provide the necessary services for an ageing population in the context of drastic budgetary reductions alongside rising cost and demand pressures for local public services. Wales has a higher proportion of older people in its population compared with England, Scotland and Northern Ireland: currently over 700.000 people in Wales are over 65 years old (of a total 3 million population), and this number is expected to rise to over a million people in the next twenty years.

 

Another important question is whether central and devolved governments will succeed in moving beyond annual incremental budgeting and implement financial and budget strategies that cover their whole term in office. Local Government has been improving its system of medium-term financial plans since 2003/04.

 

Northern Ireland

 

Local government funding in Northern Ireland comes from several sources including rates, grants and fees from services:

 

a) District Rate Revenue – from both domestic and non-domestic properties;

 

b) The “de-rating” Grant, which compensates councils for the loss of income from de-rated properties (de-rating element), and the Rates Support Grant, which is paid to councils whose needs exceed their wealth (resources element);

 

c) Specific Grants – paid from government departments, EU agencies to assist the financing of certain revenue and capital expenditure;

 

d) Fees and charges – e.g. entrance fees for leisure centres.

 

The majority of district council funding, just over two thirds, is coming from the district rate (67.6%, see below). De-rating Grants and Rates Support Grant are not ring-fenced and make up 7.8% of a council’s income, while Specific Grants and fees and charges, are ring-fenced for special purposes, e.g. emergency planning (Department of Environment), Construction Products Grant for a council’s enforcement role and the Dereliction Grant. Together with fees and charges, these ring-fenced grants make up 23% of the total income.

 

Each council raises the majority of its income through the rating system. There are two different rates:

 

(a) a domestic rate for household and occupied residential properties. It is based on the capital value of a home as at 1 January 2005 and calculated by multiplying the rateable capital valuation by the domestic rate for the council area. The domestic rate is made up by the regional rate set by the Northern Ireland Executive and the district rate set by the individual council.

 

(b) a business rate for all non-domestic properties, such as offices, factories and shops. It is based on the rental value of the property as at 1 April 2001 and made up of a number of parts including the regional rate and the district rate set by the individual council.

 

Subject to the approval of the Ministry of the Environment, loans may be raised by councils to assist the financing or funding of capital projects.

 

Public services in Northern Ireland are not (yet) the subject of the severe cuts. Belfast City Council, for instance, is 75% self-funded from domestic and business rates whilst other great metropolitan areas in England are on average only 17.6% funded from the council tax base, or 12% in inner-London Boroughs. While the impact of the crisis has not been so severe, the budgets are relatively lower. With the prospect of new functions being transferred, the contemporary transfer of resources is necessary. As rate payers in Northern Ireland do not have the money for paying higher rates, the power to raise rates will not be sufficient for councils to guarantee a commensurate funding.

 

The Local Government Finance Act (Northern Ireland) 2011 modernised the legislative framework for local government finance. It introduced a new capital finance system and set out the legislative framework within which a district council may manage its finances and central government may regulate that activity. Control by central government is to be exercised, where necessary, through subordinate legislation and guidance. The Act also contains requirements for each council to approve estimates, authorise expenditure and fix the amount to be raised by its rates for the following year as well as report duties of the council’s Chief Financial Officer. It retains the power for a council to borrow for purposes relevant to its functions (adding purposes for the prudent management of its financial affairs) and removes the requirement for approval by the DCLG. While councils are now able to decide to take a loan to refinance existing debt, they will have to comply with regulations made by the DCLG when determining an affordable borrow limit.

 

Accounts and audit

 

Councils are legally required to provide annual accounts to show their financial transactions. These accounts are audited by local government auditors designated by the Ministry of the Environment. They have the power to reject expenditure which is considered not to be lawfully incurred

 

Conclusions as regards compliance with Article 9

 

Central government is able to exercise control over local government in England through the allocation of grant funding; Council tax funds only a relatively small proportion of expenditure and any attempt of raising its level above a specified threshold is subject to the referendum obligation. Moreover, business rate levels are also centrally determined, although from 1 April 2013, the business rates retention scheme sees 50% of business rates paid to central government and 50% of the business rates retained by local authorities. The scheme also allows for local authorities to keep a proportion of any business rates growth. The high share of central Government grants (a concern expressed in the 1997 CoE Report, 9) has been reduced, but remains still over 50%. While the proportion of ring-fenced grants has also fallen compared to 1998, it is still at a remarkably high 64%.  All this reflects the centralised nature of local funding in England, although the recent business rates retention scheme might mark the beginning of a change.

 

The dramatic reduction in central government grants since 2010, is a strong indicator of funding being hardly commensurate with the functions and responsibilities of local government in England. This will lead to difficult decisions with regard to where savings can be made, including frontline services in future. The financial burden seems to have become even heavier as new functions have been given or delegated, without providing for adequate financial compensation.

 

The complex formulae for the distribution of central government funding to local authorities in England has been changed continuously over the last decade producing considerable uncertainty and, it seems, effects of unequal treatment in some specific cases.

 

Local authorities have freedom to prudentially borrow in practice. However, in 2012 the Treasury capped the amount councils in England could borrow against their ring-fenced housing budgets. In November 2013, in an opinion poll, three-quarters of councillors said that their authorities would borrow to build more homes if the government’s existing cap on Housing Revenue Account borrowing was lifted.

 

In Scotland, all local authorities have accepted the terms of the Concordat on the council tax “freeze” in return for increased spending flexibility. Although the freeze is based upon an agreement, it makes them virtually totally dependent on the Scottish Government, which transfers government grants, fixes levels of non-domestic rates and has frozen the council tax, leaving almost no room for autonomous fiscal capacity.

 

Considering the severe budget cuts that local government in the UK is generally facing means that in the current economic climate financial resources will increasingly be no longer commensurate with local authorities’ responsibilities. This will have huge implications on public service delivery, and possible implications for the workforce employed by local government.

 

The capacity to deliver essential public services, quality health and social care and effective and adequate community services and facilities, especially to the growing number of older people will be severely restricted by the austerity measures placed upon local government. This makes the question of commensurate finances for local government even more urgent. The Government seems committed to the introduction of a number of measures to support local service transformation.

 

The rapporteurs conclude that, given the above, the system cannot be said to be in compliance with Article 9 paragraphs 1, 2, 3 and 4 of the Charter. Local authorities do not have adequate financial resources and the prospects for the coming years appear even worse. Since the first report of 1998, which recommended to “seriously increase local government’s financial capacities”, the financial situation of local authorities has worsened. While local government finances are part of a national economic policy, it seems that local government is faring worse than other public sectors and national government. A diversified base of local revenue appears an urgent necessity, as Council tax is the only tax under some level of local control. However it is limited by central or devolved governments, due to the referendum obligation (England) and the freeze of council tax (Scotland). In addition, all rates are decided by governments and funding is still dominated by central government grants. In England, the new business rates retention scheme appears as a move in the right direction (diversification). Despite significant cuts, in Wales and Scotland local authorities are (still) better off financially than their English counterparts, but lacking diversity of local finances is a concern also there.

 

On the positive side, ring-fencing has been reduced and access to borrowing is guaranteed; thus, there is compliance regarding these two issues.

 

Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.


Consult reply indicated at article 9.1

Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.


Consult reply indicated at article 9.1

Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.


Consult reply indicated at article 9.1

Article 9.5
Financial resources of local authorities - Article ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.


Consult reply indicated at article 9.1

Article 9.6
Financial resources of local authorities - Article ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.


Consult reply indicated at article 9.1

Article 9.7
Financial resources of local authorities - Article ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.


Consult reply indicated at article 9.1

Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.


Consult reply indicated at article 9.1

Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.


Given that by comparison with other countries, local authorities in the United Kingdom are relatively large and have considerable functions, it is no surprise that inter-municipal co-operation has not developed much. However, there are statutory powers allowing for co-operation; in particular, councils are empowered to arrange for the discharge of their functions by another local authority as well as to establish joint committees (e.g. for running combined services in urban areas in England, such as the Tri-borough in London). In addition, certain ministerial powers exist for the compulsory establishment of joint boards which are arrangement for the joint exercise of functions by two or more local authorities (e.g. joint police boards, joint fire and rescue boards). More recently, in some cases, local authorities have opted for sharing the services of certain administrative offices among them. The economic downturn and the financial cuts have produced a new trend towards co-operation in combined authorities. The latter are established by Parliamentary Order upon request which guarantees certainty and permanence (individual authorities cannot leave the authority once established).

 

England

 

One English policy that should be mentioned is “Community Budgets”, which combine local authorities and other agencies in areas of integrated services to deliver better outcomes and realise efficiency savings. This initiative began with four pilots (London, Manchester, Essex and Cheshire) working with a wide range of agencies, including local police, fire and health services. Due to their success and potential demonstrated, the Government (through the Public Service Transformation Network) are working intensively with 9 new places to support them transform the way they deliver services and spreading learning wider to all areas interested in this approach. However, they also require changes in the organisation of services under central control and pose the question of who assumes leadership in these processes.

 

In November 2011, the Greater Manchester Combined Authority used the Localism Act 2011 for obtaining a further transfer of powers from the UK central government, enhancing its powers over transport and housing and granting it competencies to fund and control schemes on its own terms. The focus is on economic growth in a functional economic area. Favoured by the historical experience of cooperation in the area, 10 local authorities came together on a voluntary basis and co-operate in particular on policing, tourism and markets. Central government supported this with financial benefits.

 

A City Region is a functional economic area based around one of the eight core cities: Birmingham, Bristol, Leeds, Liverpool, Manchester, Nottingham, Sheffield and Newcastle. Normally, the local authorities come together in a partnership. The Leeds City Region is the functional economic area, defined by the way businesses operate and residents live their lives. It is the largest city region in the UK, home to 3 million people and 100,000 businesses, and generating 4% of the UK’s economic output. The Leeds City Region refers to the local authority districts of Barnsley, Bradford, Calderdale, Craven, Harrogate, Kirklees, Leeds, Selby, Wakefield and York and brings together the public and private sectors – and partners in government, education and the third sector. The partnership works to a common vision for economic prosperity. However, partnerships involving other bodies than local authorities might bear negative consequences for local leadership and democratic accountability.

 

City Deals are an incentive for co-operation, e.g. through combined authorities. They are all different, negotiated and supported in financial terms by the central government. Although widely seen as positive, it is also criticised on the ground that the exclusive government funding risks creating new dependencies and forms of central patronising. As their extension to bigger towns (not to rural areas) is probable, the power(s) to set own local agendas with these forms should be strengthened.

 

Wales

 

Local Service Boards (LSBs) are non-statutory partnerships across all 22 local authorities in Wales. They were set up in response to the 2006 Beecham Review’s observations that local public services in Wales faced three major barriers in terms of delivering citizen centred services: culture, complexity and capacity. Working across organisational boundaries and pooling capacity and expertise LSBs provide a platform where the leaders of local public and third sector organisations come together to take collective action to ensure public services are effective and citizen focussed. The membership, structure and approach of LSBs vary across Wales, but all have the key leaders and chief executives of the major public service providers in the area. Concern has been expressed with regard to the domination exercised by the authorities responsible for the greatest expenditure. In recent years, local authorities have had to consider whether to focus efforts on ‘deepening’ relations at the local authority level through, for example, LSBs, or ‘widening’ joint working by collaborating across a number of local authority areas.

 

In Wales, the Welsh Government’s City Regions concept shall strengthen economic development by overcoming practical difficulties due to the fact that different services are often organised on different bases. Apart from police, powers necessary for realizing the concept are devolved. Two City Regions are developed for South Wales: the Swansea Bay City Region and the South East Wales City Region. All relevant local authorities are playing a full and central role in the development of these City Regions together with other key partners for economic development. In North East Wales (Dee region), the possibility of a cross-border City Region is being explored, but there is real concern amongst North Wales local authorities that the focus on City Regions in South Wales will be to the detriment of investment and economic development in North Wales. However, it is still too early to assess the success of this approach.

 

There are four organisations representing local government in the United Kingdom:

 

Local Government Association (LGA)

 

The Local Government Association (LGA) is the national representation of (English and, where applicable, Welsh) local government and works with councils to support, promote and improve local government. It is a cross-party organisation that works on behalf of councils to ensure local government has a strong, credible voice with central government. It aims to influence and set the political agenda on the issues that matter to councils so they are able to deliver local solutions to national problems; it also intervenes in the legislative process, by giving evidence, publishing position papers and lobbying MPs. Two years ago, the LGA had seen its budget halved and, by consequence, had to reduce staff drastically.

 

In total, 412 local authorities are members of the LGA for 2012/13. These include English local councils, Welsh councils via the Welsh LGA, and fire, national park, passenger transport and police authorities, plus one town council.

 

“Core Cities” are a self-selected group of bigger, metropolitan cities with similar problems and lobbying interests. Arguments discussed in this forum are not limited to the local authorities in the strict sense, but also linked to City Regions. There was a controversy in spring whether they still feel represented by the LGA, but the question seems settled now.

 

“London Councils” is a forum of and for the London Boroughs which meet together and also, sometimes, with the GLA.

 

Welsh Local Government Association (WLGA)

 

As an ‘umbrella’ organisation, the Welsh Local Government Association (WLGA) represents the 22 local authorities in Wales; the 3 fire and rescue authorities and 3 national park authorities are included as associate members. Originally established in 1996 primarily as a policy development and representative body, the WLGA has since developed into an organisation that also leads on improvement and development, equalities, procurement, employment issues and hosts a range of partner bodies supporting local government. With the introduction of devolution in Wales, the WLGA has played an important role in representing Welsh local authorities in negotiations with the devolved government and giving evidence in committee-meetings by invitation of the Welsh National Assembly. The WLGA members are still members also of the LGA.

 

Convention of Scottish Local Authorities (COSLA)

 

The Convention of Scottish Local Authorities (COSLA) represents Scottish local government. It was formed in 1975 following local government reform of the previous year to act as an interface between local authorities and Scottish Government and the Scottish Parliament, as well the UK and EU institutions where applicable. The organisation represents all 32 Scottish local authorities. It also acts as the employers’ association for all Scottish local authorities, negotiating on conditions of services with trade unions. In addition, there is a range of organisations representing the interests of particular professional groupings within Scottish local government, in particular SOLACE (Scotland), representing Chief Executives and senior managers in Scottish local authorities. COSLA meetings with all 32 Council Leaders are held regularly once a month plus bigger gatherings three times a year. Recently, the COSLA Convention has launched a general public debate on the position of local government in Scotland; all Councils have agreed on a vision called “Local Matters. To develop this approach further, the Commission on Strengthening Local Democracy has been launched.

 

Northern Ireland Local Government Association (NILGA)

 

The Northern Ireland Local Government Association (NILGA) is supported by the main political parties in Northern Ireland together with representatives from other parties, and is supported by elected representatives from all 26 local authorities who are members. NILGA is involved in the reform process and consulted, in particular by evidence in the Northern Ireland Assembly. It cooperates with Irish and other UK Local Government Associations.

 

Trans-frontier co-operation (Northern Ireland)

 

North/South cooperation is one of the important elements of the Good Friday Agreement for Northern Ireland. Apart from the North/South Ministerial Council, concrete trans-frontier cooperation projects and regions have been established bridging the border between Northern Ireland and the Republic of Ireland. East Border Region Ltd is a local authority led trans-frontier network with 10 local councils from Northern Ireland and 3 county councils of the Republic of Ireland engaged in a cooperation, also for access to EU structural funds (with the role of Implementing Body in the Ireland/Northern Ireland INTERREG IIIA and IVA Programmes). It is a member of the Association of European Border Regions (AEBR).

 

The Special EU Programmes Body (SEUPB) manages cross-border European Union Structural Funds programmes in Northern Ireland, the Border Region of Ireland and parts of Western Scotland. The SEUPB is one of the six cross-border Bodies set up under the “Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing implementing bodies” signed on 8 March 1999 (the British-Irish Agreement of 8 March 1999). The Agreement was given domestic effect, North and South, by means of the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 and the British-Irish Agreement Act 1999 respectively. The SEUPB has a role to facilitate project participation in the INTERREG IVB Transnational Programmes which are relevant to Northern Ireland and the Border Region of Ireland and also the INTERREG IVC Programme, which is open to projects across the European Union. It functions as the Managing Authority, Joint Technical Secretariat and Certifying Authority for the INTERREG IVA and PEACE III Programmes.

 

However, according to interlocutors, in Northern Ireland structural funds and peace funds are currently under the responsibility of five different Managing Authorities as five Departments are involved in structural funds projects. Through concentration in one system, red tape could be cut and funds be managed more efficiently.

 

Conclusions as regards compliance with Article 10

 

Joint activity in the provision of services and in relation to management of an authority involves, as a result of resource pressures, ia range of different forms of collaboration from formal joint committees to informal partnership arrangements. Voluntary co-operation also develops in new forms in urban areas to cope with metropolitan situations, and there is also a lot of voluntary cooperation and sharing of staff in rural areas. It is certainly an alternative to structural change. Some forms are still experimental, but the current trend might be interpreted as the beginning of a bottom-up restructuring process of local government to be systematically assisted. At least in urban areas, single tier (unitary) authorities are now standard. A balance between efficiency gains through these new forms of cooperation and sufficient guarantees for democratic accountability seems important for the future. This also leads to the question whether in the medium-term the experience with these developments should not be organically regulated in a systemic legal regulation on local government.

 

The developments in Scotland and Wales appear similar, despite differences in detail (e.g. English and Welsh City Regions). Co-operation seems a general trend also in Scotland and Wales. While in Northern Ireland the process of reducing the number of local authorities is under way, further amalgamation is subject to a (controversial) debate option in Wales and Scotland.

 

In the law-making process, consultation with local authorities in England takes place mainly through Parliament (MPs and Members of the House of Lords as well as evidence). The Rapporteurs are of the opinion that, overall, the representation through the LGA appears as efficient and effective and in compliance with the requirements of the Charter.

 

The Rapporteurs consider that the situation regarding the right to associate and to associations is in compliance with Article 10.

 

Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.


Consult reply indicated at article 10.1

Article 10.3
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.


Consult reply indicated at article 10.1

Article 11
Legal protection of local selfgovernment - Article ratified

Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.


There is fairly limited protection against central government. In extreme cases, local authorities might approach the High Court for judicial review. The parameters for judicial review depend on whether protection of local self-government is sought against the legislature (Parliament), or the executive (central or local government). In the former case, possibilities of a judicial challenge are very limited, mainly to a breach of the rule of law or fundamental rights. In the latter case, judicial review may be possible against decisions or actions of the executive, if the public body has acted in violation of the law, such as acting outside its powers. A judicial review challenges the way in which a decision has been made, rather than analyse or weigh the result of the decision, action or conclusion reached.

 

Typical court actions concern planning decisions, housing and the reduction of the number of local authorities In the first two cases, individuals challenge decisions or actions of local authorities (example: current planning decisions in London on enlargement of basements challenged by neighbours or provision of housing to immigrants). In the past, local authorities won some cases, defending themselves against the elimination of two-tier authorities. Also inspection powers might be challenged by judicial review (process review).

 

As the Charter is not part of domestic law, it cannot therefore be relied on as a source of substantive rights or restrictions. The Charter  is neither directly applicable by the courts nor can local governments refer to it (in case of judicial review) as a ground for invalidity leading to striking down primary legislation. It might be used as an aid to interpretation (only).

 

The number of judicial court actions related to legal protection of local authorities is still relatively small. Local authorities in fact often look for “political” rather than legal solutions, such as campaigns supported by MPs and Members of the House of Lords or through the LGA. An example is the controversy regarding the Publicity Code, i.e. the publication of freely distributed papers and magazines with information on council activities. Numerous councils wrote to central government and campaigned against the proposals. In other cases, also online petitions have been used.

 

 

The rapporteurs consider that, despite fairly limited protection, judicial review is possible and the situation can be considered to be in compliance with the Charter.

 

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

At present, the United Kingdom does not have a written constitution, or any specific legal guarantees for the principles of local self-government.



30Ratified provision(s)
0Provision(s) with reservation(s)
0 Unratified Provision(s)
13Compliant Provision(s)
0Partially Compliant Provision(s)
5Non-compliant Provision(s)