This post is the third in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this third post in the series, we consider proposals for devolution within England.
We consider in other parts of this update the way in which devolution is playing out in relation to Northern Ireland, Scotland and Wales, with particular reference to the aftermath of the Scottish independence referendum, as well as the implications of the referendum for the notion of “English Votes for English Laws”. Those so-called EVEL proposals form one aspect of the twin-track approach that is now being taken in order to address the fact that, as Richard Rawlings memorably put it, England has so far been the “spectre at the feast” as far as devolution is concerned. EVEL aims to rebalance the relationship between England and the devolved nations: to the extent that EVEL goes some (modest) distance towards creating a sort of English Parliament within the Westminster Parliament, it can therefore characterised as a (very loose) form of devolution to England.
In contrast, a second set of proposals is concerned with devolution within England. Of course, this notion is not new. In 2004, the then New Labour government floated the idea of elected regional assemblies. However, this plan never even got off the ground, voters in a referendum held in the north-east of England — which was chosen as a testing ground due its strong regional identity — resoundingly rejecting it. However, the notion of devolution within England has now been revived, albeit in a very different form.
The Local Democracy, Economic Development and Construction Act 2009 already provides for local authorities to act in concert for certain purposes as so-called combined authorities, the thinking being that it may be beneficial for several local authorities to act in a co-ordinated manner in relation to certain matters. A prominent example of this model in action is the Greater Manchester Combined Authority, which brings together ten local councils in the north-west of England. (The UK Government is fond of referring to this initiative as (an aspect of) the so-called Northern Powerhouse.) The Cities and Local Government Devolution Bill builds on and substantially extends this approach. It opens up the potential for a very broad range of powers to be conferred upon combined authorities and provides for such authorities — with the Secretary of State’s consent — to adopt an elected mayor. The elected mayor would run the combined authority with a cabinet consisting of the leaders of the participating local authorities. In effect, then, this inserts — where it applies — a new tier of regional government in England, albeit that it is a bottom-up form of regional government in the sense that has its institutional basis in local authorities.
In a recent report on the Bill, the House of Lords Constitution Committee drew attention to two constitutionally significant — and potentially problematic — aspects of it. First, the Committee pointed out that the Bill essentially constitutes enabling legislation. The result is that the Bill does not prescribe in any detail any particular set of arrangements (in relation, for example, to the type and extent of powers that are to be conferred upon combined authorities). As such, said the Committee in its report, the Bill
would allow the Secretary of State to reallocate very extensive powers from central government to local government, transfer powers within local government, and to abolish public authorities, by order. This equates to a significant extension of Ministers’ powers …
Paradoxically, therefore, while the Bill sets out to empower local government by facilitating the conferral upon it (through the medium of combined authorities) of additional powers, the Bill does so by reserving to the Secretary of State — a member of the central government — unprecedented powers to reorganise local government. This point is also picked up by Dr John Stanton in a post on the UK Constitutional Law Blog, in which he notes that the Bill places the Secretary of State, and hence central government, in a pivotal position when it comes to negotiating the nature, shape and scope of the settlements reached with combined authorities:
Whilst this is perhaps an obvious way in which central government can fairly be represented in any devolution negotiations with councils, care must be taken in ensuring that the powers are not used too much to impose central desires on councils. Problems in the past, with attempts at decentralisation, have often come down to the retention of power in Whitehall and the inclination of those at the centre to be overly prescriptive with local matters. Indeed, the Localism Act 2011 itself introduced a substantial number of new powers for the Secretary of State. The government, at this point, needs to be careful not to let this continue and to expatiate more clearly how far the Secretary of State can go in deciding the powers to be devolved to councils and the structures that those councils should adopt as part of that devolution.
The Constitution Committee drew attention to a second concern — namely, the sheer complexity of the governmental system that might be yielded by the Bill:
[L]ocal government in England is likely to become more complicated, as different combined authorities receive different packages of powers. This is a significant departure from past practice which has operated on the basis of a finite number of different council models. The Bill, by contrast, creates the possibility of bespoke arrangements for each combined authority. It might be argued that the proposed system is a paradigm example of demand-and-supply devolution, responsive to local needs. On the other hand there are real concerns about the complexity of the system that may result, and the degree of asymmetry which these changes may bring about.
As the Committee points out, the effect of the Bill might be to replicate in England the asymmetrical arrangements that are already in place across the UK as a whole, given the different devolution settlements that operate in Northern Ireland, Scotland and Wales respectively. On one view, such complexity is no bad thing: it is simply a function of a giving-people-what-they-want approach to devolution. However, for two reasons, it is appropriate to enter a note of caution. First, it is not entirely clear that the Bill will result in giving people what they want, given that the nature of regional devolution settlements will essentially be a matter for negotiation between consortia of local authorities and the Secretary of State. Public participation in that process is likely to be indirect at best. Second, there is a real risk that lines of accountability will become blurred as between local authorities, combined authorities (and their mayors) and central government.
Ultimately, however, it is hard to forecast with any certainty whether these concerns will be realised, precisely because the Bill is an enabling one. The devil, as always, lies in the detail: but the detail will not become apparent until we are in a position to see how the Secretary of State will use the broad discretionary powers conferred by the Act so as to reshape local and regional government in England.