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date: 26 June 2022

p. 25110. Local Governmentfree

p. 25110. Local Governmentfree

  • Ian LovelandIan LovelandProfessor of Public Law, City, University of London

Abstract

This chapter examines the institution of local government. This topic is often neglected in constitutional law studies, on the rather simplistic basis that since the United Kingdom is not in a legal sense a ‘federal country’ it is only the national governmental system that merits close attention. The suggestion made here is that analysis of the role played by local government institutions reveals a great deal about the nature of ‘democracy’ within our modern constitution. The chapter focuses in general terms on the evolution of ideas relating to localism, tradition, and the ‘modernisation’ of local government and on local government’s changing constitutional status during the course of the twentieth century. More specifically, the chapter examines trends in the institutional structure of the local government sector (and especially the abolition of the Greater London Council and metropolitan counties in the mid-1980s), developments relating to the fiscal autonomy of local government throughout that period, the role played by the judiciary in determining the limits of local government autonomy, and changes in one of the most important areas of local authority activity – the provision of council housing.

We have thus far encountered federalism in several different forms. Chapter one noted the inter-relationship in the United States between the people, the national government, and the State governments. The geographical separation of powers between national and State government and the subordination of both spheres of governance to the sovereignty of ‘the people’1 were fundamental political principles underpinning the constitutional settlement, afforded explicit legal protection in the Constitution’s text. Chapter nine discussed how the Canadian constitution developed a similarly profound attachment to a national/provincial division of powers as a matter of constitutional convention.

Both Canadian and American federalism rest on the moral premise that the constitutions of large, democratic nations should permit ‘the people’s’ inevitably varying political sentiments to be constantly expressed on matters of substantial political significance: individual States and Provinces may have quite different laws in respect of important as well as trivial political or moral issues.

A unitary state where legislators face periodic re-election may provide its people with the opportunity to consent in a sequential sense, at a national level, to different governmental p. 252philosophies. It may have supra-legislative constitutional provisions which ensure that opposition parties have realistic prospects of winning future general elections. But such societies cannot provide their people, as does the United States, with any legally constituent basis for the simultaneous co-existence of alternative governmental programmes.

It is also possible, in theory, for a unitary state with a legislature exercising sovereign powers on a bare majority basis to offer its people substantial sequential and simultaneous pluralism. This would require that whichever political faction controlled a central legislative majority regarded allowing legal effect to be given to differing political preferences in different parts of the country as a fundamental principle of constitutional morality. Such legislators would maintain a governmental system facilitating effective expression of divergent political opinion. The fewer the powers that the national legislature gave to the national government, and the more it allocated to locally elected bodies, the less unitary and thence more ‘federal’ or ‘pluralist’ the constitution’s moral, functional basis would be. A country could be very federalist in functional terms, while formally being entirely unitary.

Post-revolutionary England adopted a constitutional structure recognising a unitary state, within which Parliament possessed total legislative competence. Presumptively therefore, any geographical division of governmental power within English (and later British) society could not have a constituent legal status, but only a moral (or, to use familiar terminology, conventional) basis.

That the American and English revolutionaries adopted (and that their successors subsequently maintained) such divergent approaches to the geographical separation of powers might suggest either or both of two things. Firstly, that British society did not then (and has not since) contained geographically based divisions of political sentiment among its people; and/or, secondly, that it has such divisions, and they have been respected by successive parliamentary majorities. The rest of this chapter explores those issues.

I. Localism, tradition, and the ‘modernisation’ of local government

‘Localism’ was an important element of seventeenth-century English political culture. By then, some areas could already claim several hundred years of self-government. Kingston-upon-Hull was recognised as a unit of local government by 1299, while Beverley traces its local government history back to 1129.2 Much local government activity was based on a fusion rather than separation of powers. Its origins frequently lay in the need to enforce and maintain law and order, so government officials frequently occupied posts which now appear as much judicial as executive in nature.3 Indeed, the English ‘common law’ emerged from efforts by successive Monarchs to impose uniform legal principles on the many divergent inferior jurisdictions which flourished in England since the Middle Ages.4

The twin socio-economic forces of urbanisation and industrialisation5 placed increasing demands on government from 1750 onwards, particularly regarding maintaining public health, transport infrastructure, and law and order. Initially however, Parliament did not address these pressures systematically. Rather, it created ad hoc units of local government in response to perceived social needs. Often these government bodies had only one responsibility: for poor relief, or sewerage works, for example. Some, but not all of these office holders were p. 253elected (and electorates were then extremely small and unrepresentative of local populations). Most were appointed by central government, which had often delegated that responsibility to powerful locally based politicians. In terms both of the type of powers that its office holders exercised, and the way that they were chosen, local government might then more appropriately be characterised as a form of ‘magistracy’ rather than of representative democracy.

The preponderance of single function authorities produced a complex governmental structure. As well as presenting difficulties in co-ordinating service provision, the profusion of small single issue bodies prevented local government deriving the advantages of economies of scale, and offered many opportunities for corruption and patronage in allocating offices and the performance of public duties. It was not a system well-suited to the social, economic, and political demands of a country undergoing the world’s first industrial revolution.

The Municipal Corporations Act 1835

Following the passage of the 1832 Great Reform Act, the Whigs (Liberals), then led by Lord Melbourne, promised radical reform of the country’s local government structures. Such radicalism triggered one of the last exercises of explicitly partisan monarchical intervention in the political process. William IV dismissed Melbourne’s government and dissolved Parliament hoping that an election would produce a Tory majority. However the January 1835 election returned the Whigs (with Melbourne as Prime Minister with an adequate Commons majority). Melbourne resumed office only after having extracted a pledge of support from the King,6 and immediately promoted a local government reform Bill.

The Bill met determined opposition in the Lords. This is perhaps surprising, given the obvious ‘defeat’ that the Lords had suffered over the 1832 Great Reform Act. It seems more readily understandable, however, when one considers the Bill’s impact on aristocratic control over the country’s governance. To some contemporary observers, the Bill amounted to revolution:

There never was such a coup as this Bill… . It marshalls all the middle classes in all the towns … in the ranks of reform: aye, and gives them monstrous power too. I consider it a much greater blow to Toryism than the Reform Bill itself.7

While the 1832 Act had cut a swathe through the foliage of the landed classes’ political influence, the 1835 Bill attacked that influence at its roots: it signified that the twin economic forces of urbanisation and industrialisation had been joined by the political catalyst of increased pressure for democratisation of the country’s constitutional arrangements in accordance with the emergent middle classes’ attachment to the principles of efficiency and representativeness in public affairs.

The Tory peers campaigned vigorously against the Bill,8 passing numerous wrecking amendments. The government offered no resistance, seemingly believing that if given enough legislative rope those peers would hang themselves from the scaffold of reformist, middle class public opinion. One contemporary commentator suggested that the government was:

content to exhibit its paltry numbers in the House of Lords in order that the world may see how essentially it is a Tory body, that it hardly fulfils the conditions of a great independent legislative assembly, but presents the appearance of a dominant party faction.9

As in 1832, the Lords’ intransigence finally foundered on Peel’s refusal to condone their obstruction of an elected government’s policy. Shorn of lower house support, Tory peers subsequently contented themselves with fashioning amendments which the Whig government would accept. This was not however the end of the legal battle over the Act.

p. 254The courts as defenders of local democracy—the emergence of the ‘fiduciary duty doctrine’

Prior to enactment of the legislation, officials of several boroughs attempted to prevent corporation assets falling into the hands of the newly enfranchised middle classes by disposing of corporation property to themselves or their nominees. Once the Act came into force, the newly elected authorities (acting through the Attorney-General) sought recovery of the assets.

A-G v Aspinall10 was the first of these cases. The application succeeded, the nub of the judgment being that the controllers of the corporation, whoever they might be, held its property on trust for their successors and that dispositions of such property; ‘made collusively for less than full value’ were unlawful.11 Lord Cottenham CJ analysed the case by drawing an analogy from the law of trusts, in which a trustee holding financial resources on trust for a beneficiary is placed under an implied ‘fiduciary duty’ to exercise her management powers over the resources to the best advantage of the beneficiary:

I cannot doubt that a clear trust was created by this Act for public, and therefore in the legal sense of the term, charitable purposes of all the property belonging to the corporation at the time of the passing of this Act; and that the corporation in its former state … were in the situation of trustees for these purposes … and subject to the general obligations and duties of persons in whom such property is vested.12

These cases indicate that the fiduciary duty doctrine in relation to local authorities emerged within English law to deal with an extreme political problem; namely an attempt by appointed holders of public office to sabotage an Act of Parliament and to undermine the significance of the newly created local electoral process.

An incremental approach to reform

The 1835 legislation reformed only urban areas—the rural local government system remained intact. Nor did the Act transfer many powers to the new borough councils from existing single function bodies. Its importance lay rather in its recognition that councillors should hold office on the basis of periodic elections, and that their continued occupancy of that office should depend on their winning the consent of a local electorate with a franchise based on low levels of property ownership.13

Parliament nevertheless continued to create single issue local bodies to address new social and economic problems. The Poor Law Amendment Act 1834 vested responsibility for the administration of poor relief in local ‘Boards of Guardians’, rather than granting it to the soon to be reformed boroughs. Similarly, following acute public anxiety in the 1850s over the spread of cholera, Parliament created local ‘Boards of Health’, rather than bestow such powers on the boroughs. It was not until the 1870s that the legislature was ultimately convinced of the desirability of allocating this task to the boroughs.

By the 1880s, the boroughs’ ‘multi-functional’14 nature was firmly established. They gained extensive responsibilities in the areas of housing provision and town planning. Relatedly, Parliament had in 1871 created a central government department, originally titled the Local Government Board, to co-ordinate and oversee local authority activities.15

p. 255The system of rural local government was not rationalised in the sense of becoming multifunctional and elected according to a uniform franchise until the enactment of the Local Government Act 1888. A county council for London was created in 1899. The 1902 Education Act further reinforced councils’ multi-functional importance by transferring responsibility for state elementary schooling from the specialist school boards established in 1870 to the county councils and the larger boroughs.

During the next two decades, Parliament made further significant extensions to local government’s responsibilities for administering the newly emergent welfare state. There were then some 1,500 units of elected, multi-functional local government. They were divided on the basis of powers as well as geography. Many authorities existed within a two-tier structure, in which different types of authority had different responsibilities.16 Thus a county council, which provided education and social services throughout its area, might contain within its boundaries several borough councils, each controlling such issues as housing and town planning. The picture was further complicated by some areas which had only a single-tier structure; larger boroughs might be granted ‘county borough status’, and thereby take over the county’s responsibilities within the borough’s boundaries.

Given their profusion, there was no scope for local councils to exercise powers on a scale comparable to those possessed by American State governments. But this does not mean that their powers were politically insignificant. In a welfare state, citizens will be intimately and acutely affected by governmental decisions in such fields as education, housing, social services, and town planning. Moreover, the combined impact of these services would be sufficient to enable electors to express appreciably divergent opinions as to the precise content and conduct of citizen-government relations in their respective areas.

By 1920, the democratisation of British society was firmly established. Parliament had introduced a near universal franchise, and the legal reduction in the Lords’ powers under the Parliament Act 1911 stressed the elected chamber’s dominance in the legislative process. It was also the case that the ‘people’s’ political allegiance was almost equally divided between the Conservative and Liberal/Labour parties. A powerful local government sector, enjoying appreciable independence from central control, would thus offer voters whose party lost the national election the opportunity to see their preferred policies given some effect at local level. If our concept of democracy rests on reasonably sophisticated notions of popular consent to government, it is of crucial importance to consider, as a matter both of law and of convention, the principles which structured the relationship between central government, local authorities, and the national and local electorates from the 1920s onwards.

II. Local government’s constitutional status in the early-twentieth-century—law and convention

The sophisticated understanding of consent might provide us with (per Jennings) a ‘reason’ for parliamentary self-restraint in respect of local political pluralism. From this perspective, it makes little sense to search for conventional understandings of central/local relations prior to 1918. That date does offer, from a contemporary vantage point, the advantage of giving us (to borrow from Asquith)17 a sufficiently lengthy time span to scrutinise to see if any clear ‘traditions and settled practices’ have emerged.

Several strong presumptions as to the ‘correct’ allocation of power between central and local government were consolidated among politicians of all parties during World War II, p. 256when Britain was governed by a Conservative-Labour-Liberal coalition. The parliamentary roots of the Butskellite consensus are highly significant for consent-based theories of constitutional law, since Churchill’s war-time administration is the only modern government which can plausibly be portrayed as commanding the level of popular support which, in democracies such as the United States, would be sufficient to redefine ‘fundamental’ constitutional values. The depth of the consensus between mainstream Conservative and Labour policies is well illustrated by Churchill’s first Commons speech following his return as Prime Minister in 1951: ‘What the nation needs is several years of quiet, steady administration, if only to allow the socialist [ie Labour government’s] legislation to reach its full fruition’.18

The ‘socialist legislation’ to which Churchill referred had entailed significant transfers of formerly local responsibilities to newly created national bodies, especially in the fields of health care and the management of gas, water, and electricity supplies. In terms of the multiplicity of its functions, local government in the Butskellite era was thus less important than it had been immediately before the war. It was also subject to more central oversight; legislation increasingly empowered Ministers to override council decisions in certain circumstances.19 However in terms of the scale of its activities, local government had become more important than ever. Local responsibilities lay primarily in the fields of housing, education, land-use planning, and social work services. Given the substantive importance of such functions in a modern welfare state, their reservation to elected local government could be seen as a guarantor of political pluralism within the government process. Should the Labour, Liberal, or Conservative parties win control of councils endowed by Parliament with such significant responsibilities, they might reasonably assume that their respective political preferences would be implemented in some areas, irrespective of the outcome of general elections. This is not to suggest that local councils would enjoy complete independence in these spheres of activity, but rather that they would possess sufficient autonomy to exceed or modify centrally determined standards.20

There was a readily discernible party split along regional lines in general elections during the post-war era. Crudely stated, more electors in London, Wales, Scotland, and northern England consistently voted Labour rather than Conservative, and that tendency was reversed in the rest of southern England. Powerful, autonomous local councils would ensure that this geographically based divergence of opinion was constantly accommodated within the country’s overall government structure. It is plausible to conclude that ‘the people’ in these regions would more readily consent to defeat at the national level if their respective political preferences influenced the government process on a significant, if limited scale in their particular areas.

The Butskellite view of government also acknowledged reasons of a less profoundly ‘constitutional’ nature for preserving a powerful local government sector.21 The first might be called the ‘local knowledge’ factor. This argument assumes that one will improve the efficiency of service provision if it is entrusted to an organisation with intimate knowledge of local social and economic conditions, especially if one is dealing with a package of services where trade-offs need to be made between the resources each is allocated.

A second justification falls under the heading of political education. Councils can serve as training grounds for politicians before they move on to central government. In another sense, local government’s role as a political educator draws more people into the government process, thereby making them aware of their rights and responsibilities as citizens. This can be achieved by becoming a councillor, getting involved with local pressure groups, or even individual lobbying over such issues as school closures or housing repairs.

p. 257A third justification sees local government as a vehicle for experimental social policies. The sheer diversity of political opinion to which local councils offer expression makes it likely that some authorities will formulate innovative policies. Relatedly, the small geographical scope of any such authority’s jurisdiction offers a guarantee of damage limitation if experimental policies prove unsuccessful.

Broadly stated, this Butskellite perception of local government suggests that there is more to the concept of ‘democracy’ in a modern multi-party state than a five-yearly stroll to the ballot box to express a preference concerning the party composition of national government. Rather, it indicates that democracy in post-war Britain was widely perceived as a perpetual and multi-faceted process, within which various sub-groups of ‘the people’ would push and pull ‘government’ at all levels in contradictory directions, and to which a geographical separation of powers could make a vital contribution.

The physical boundaries of local authorities

In terms of their physical boundaries, no less than in respect of their powers, local authorities have not enjoyed a sacrosanct, conventional status in the modern era. The Macmillan government had persuaded Parliament to create a Local Government Boundary Commission in 1958, which exercised powers analogous to those of its parliamentary namesake.22 Boundary redrawing had previously been undertaken on an ad hoc basis, a process clearly vulnerable to accusations of political bias. Macmillan’s initiative lent the issue a consensual rather than factional character.

However, the Commission was abolished during Harold Wilson’s first administration. Wilson established a Royal Commission (the Redcliffe-Maud Commission) to review the structure of local government in England. Richard Crossman, then Minister of Local Government, was largely responsible for determining the Commission’s personnel and terms of reference.23

Redcliffe-Maud recommended radical reforms. It proposed as a first principle that England should contain just fifty-eight local councils, each exercising all the powers formerly divided between counties, county boroughs, and boroughs. A two-tier system would be retained only in London and several other large conurbations. The Commission also advocated the creation of eight ‘provinces’, whose governments (indirectly elected from the other local authorities) would exercise broad, strategic economic planning powers.

Redcliffe-Maud suggested that these reforms would eliminate conflict and confusion between different types of authorities with geographically overlapping responsibilities, heighten people’s awareness of which government body was responsible for local service provision, and by enhancing both the geographical size and range of powers each council wielded significantly increase local government’s political importance. Had they been implemented, the proposals would have lent English government a distinctly more ‘federal’ character.

The Labour and Conservative parties were divided on the merits of Redcliffe-Maud’s proposals, although both rejected the proposal for provincial government. Labour’s initial Bill watered down the proposals significantly, although it did not reject in principle the extension of single-tier local government. However the Wilson government lost office in the 1970 general election before its measures could be enacted. The Heath government, in contrast, while accepting that England contained too many small authorities, remained attached to the multi-tier principle. The Local Government Act 1972 abolished many of the 1,500 small councils which then existed, and merged them into larger units. The ‘larger units’ were still p. 258however numerous and therefore often quite small. In 1974 there were forty-seven county councils in England and Wales, thirty-six metropolitan district councils, and 333 district councils.24 Only the metropolitan districts were single-tier authorities in the sense envisaged by Redcliffe-Maud and apparently preferred by the Labour Party. The Bill had been appreciably amended during its passage, when the government accepted that its original proposals should be adjusted to accommodate local sensitivities.25 The Bill was nevertheless opposed at second reading by both the Labour and Liberal parties.

The size and range of powers exercised by local councils has obvious implications for the sector’s efficacy as a representative of divergent political opinion. The larger a council, and the more extensive its powers, the greater scope it possesses to act as a meaningful ‘alternative’ to central government for a local electorate which opposes the party commanding a Commons majority. Neither the Conservative nor Labour parties during the Butskellite era saw any merit in creating a conventionally federal model of central/local relations; councils remained too small, too numerous and too functionally heterogeneous for that argument to have any force. But this is not to say either that local authorities therefore lacked a significant degree of political autonomy, or that the British constitution was insensitive to the pluralist nature of its people’s political beliefs. Before introducing its Bill, the Heath government had stated that:

A vigorous local democracy means that authorities must be given real functions—with powers of decision and the ability to take action without being subjected to excessive regulation by central government through financial or other controls … [A]bove all else, a genuine local democracy implies that decisions should be taken—and should be seen to be taken—as locally as possible.26

The following pages address the extent to which such rhetoric reflected the realities of central/local relations.

III. Taxation and representation: the fiscal autonomy of local government

There is a close connection between fiscal and political autonomy within the ‘government’ process. The notion of ‘government’ carries within it the idea that elected representatives can raise sufficient revenue to put the policies preferred by their electorate into practice: such limits as were imposed on this power would be a purely political matter regulated by the electoral process. An elected body whose revenue and expenditure was determined entirely by another government organisation would not in any meaningful sense be a ‘government’, but would be merely an administering agency doing the bidding of its fiscal master. This point illustrates a proposition of general applicability to the British constitution in the modern era; that the more fiscal autonomy the council sector possessed, the greater its capacity to express pluralist political sentiment, and hence the more ‘governmental’ and less ‘administrative’ its constitutional role.

The multi-functional, elected local authorities with which Britain entered the modern era derived their funding from three sources. The first was grants from central government. The second was income from trading operations, especially rents from council houses. The third was a locally levied property tax, colloquially known as ‘the rates’, paid by local businesses and householders.

p. 259As Table 10.1 suggests, the trend during the twentieth century until 1980 was for an increasingly larger part of local government’s income to be central government grant. By the mid-1970s over 40% of a council’s income came from grants; barely 25% derived from the rates.

Table 10.1 Sources of local authority income 1945–1970

Year

Income (£m)

Rates %

Grants %

Trading operations %

1950

966

34

34

32

1955

1415

33

36

31

1960

2182

33

37

30

1966

3767

33

38

29

1970

5511

31

40

29

Source: Extracted from data in Layfield/DoE (1976) Local government finance.

One reason for this heavy financial input from central government lay in the need to avoid massive inequality in service provision between various councils. Local authorities obviously cover very different areas. There can be significant discrepancies both in their wealth and their needs for welfare services. In general, poorer areas will need more services but have less capacity to pay for them than more affluent regions. Central grants were allocated according to various complex formulae which tried to take these factors into account—in effect the process involved a transfer of wealth from richer to poorer areas to enable all councils to meet minimum standards of service provision.

But while greater central funding may enhance equality, it threatens local authorities’ political independence from central government. If a council could levy and spend only the funds which central government provided, the local electoral process would be a charade; the constitution might just as well provide for a local office of a central government department to administer whatever services central government wished to offer, and abolish local elections altogether.

Several steps were taken to reduce this risk. From the 1950s onwards,27 central grants were paid in a ‘block’, rather than being earmarked for specific services. This permitted councils to prioritise expenditure on different activities according to their particular political preferences. More significant was the apparent existence of a conventional rule that central government would not use statute to limit the revenue that local authorities raised through the rates. The question of local taxation levels was presumed a matter for a council and its electors. If rates were too high, the appropriate means to reduce them was for local electors to vote the party controlling the council out of office, and replace it with a party committed to lower levels of expenditure on local services. Central government might request an authority to keep its rates within certain limits; it might negotiate about councils’ spending plans; it might even threaten to reduce the grants it provided; but it did not ask Parliament to place legal limits on councils’ tax levying ‘independence’.

The significance of Parliament’s conventional self-restraint on the question of local taxation was forcefully stressed by Jennings in 1960:

Local authorities are elected by the people of the area not to carry out as agents of the central government the policy of that government, but to carry out the policy of the electors of the area. The furtherance of that policy needs expenditure, and for the expenditure and the means of meeting it the local authority is again responsible, not to the central government … but to the electors… . The importance of this principle cannot be overestimated… . so long as the rating power is independent of [central government] control, local government as a whole must be, to a large extent, independent.28

p. 260One must beware of exaggerating this degree of ‘independence’. Indeed, independence is perhaps an inappropriate descriptor: ‘autonomy’ may be a better term to describe local government’s constitutional relationship vis-à-vis central government, given that so much of its finances derived from central grants. To explore this issue, we must examine the legal framework regulating council behaviour in rather more detail.

IV. The role of the judiciary

Councils are statutory creations, susceptible to judicial review to ensure that the powers that Parliament has granted them are not exceeded. However the absence of explicit legal limits on a council’s rate levying power typified a general trend in legislation defining local government powers before 1980. Many local government statutes were drafted in very loose language, reflecting the fact that Parliament accepted both the need for local variation in service provision, and the competence of elected councillors to reach those exact decisions.

Consequently, we can find several important cases which suggest that the courts might be reluctant to apply the ultra vires doctrine to councils acting under loosely drafted statutes. In Kruse v Johnson,29 the local authority had passed a bye-law30 making it an offence to play an instrument on the highway within fifty yards of a dwelling house if asked to stop by an occupant or constable. The bye-law apparently expressed the wish of local electors to maintain peace and quiet in their neighbourhoods. Kruse was charged with the offence, but raised in his defence the assertion that the bye-law was invalid because it was ‘unreasonable’. In addressing this question, the Court held that because councils were elected bodies accountable to their voters, bye-laws should be ‘benevolently’ interpreted. While a bye-law would be ultra vires if unreasonable, unreasonable bore a special meaning in this context. The substance of a decision would only be ultra vires if it was ‘manifestly unjust; or contained elements of bad faith or fraud; or involved gratuitous and oppressive interference with citizens’ rights’.31

This expansive concept of substantive reasonableness in relation to local authority discretion was reiterated in 1948 in Associated Provincial Picture Houses Ltd v Wednesbury Corpn, a case briefly noted in chapter three.32 In Wednesbury, the Court of Appeal refused to interfere with a council decision to use its statutory power to license cinemas to prohibit children from attending shows on Sundays. The Court considered the policy well within the range of opinions that reasonable people might hold. The courts should only invalidate the substance of such a decision if it was so grossly unreasonable that no reasonable person could have thought it within the powers conferred by the Act.

These two cases both seemed to accept that the courts should be very slow to question the merits of council policy decisions. Their rationale appears to be that Parliament has entrusted these democratically elected bodies to govern their particular areas in certain fields. This process necessarily involves making value judgements about political issues, a task which, in accordance with traditional notions of the separation of powers, one might reasonably assume that politicians are better equipped to make than judges. But Kruse and Wednesbury co-existed with another line of cases in which judges placed more restrictive limits on a council’s power to pursue its preferred policies. The best known is Roberts v Hopwood, which reached the House of Lords in 1925.

p. 261The ‘fiduciary duty’ doctrine revisited (and subverted?)

Poplar Council, a small inner-London authority, was controlled by a radical faction of the Labour Party in the 1920s. The councillors had an uneasy relationship with central government over their social policies. This conflict came to a head when the council decided to pay all its employees a flat rate wage much higher than that offered for similar private sector jobs or by many other local authorities.33

Section 62 of the Metropolis Management Act 1855 empowered the council to pay its employees ‘such wages as it thinks fit’. The council assumed this meant either that there were no limits on its discretion, or at most, that its policy should be ‘benevolently’ interpreted per Kruse. This was the view taken by the Court of Appeal in Roberts.

However the House of Lords decided that the council’s apparently unfettered statutory power to pay ‘such wages as it thinks fit’ was subject to a common law ‘fiduciary duty’ to local ratepayers, analogous to the duty a limited company owes to its shareholders, or trustees owe to the trust’s beneficiaries. As noted earlier, this principle emerged within British constitutional law to protect the interests of local voters against the behaviour of electorally unaccountable municipal office holders. This point seems to have been either overlooked or disregarded in the House of Lords. Neither Aspinall nor Wilson was cited in any of the opinions delivered by the Court. As construed by the House of Lords in Roberts, the fiduciary duty doctrine apparently required that local authorities be construed as businesses, operating on a profit and loss basis, rather than as governments which can redistribute wealth in whatever way attracts electoral support. The House of Lords characterised Poplar’s policy as the pursuit of ‘eccentric principles of socialist philanthropy’. Councillors should not allow their personal political or philosophical preferences to influence their policy choices.

This reasoning entirely ignores the argument that giving effect to local partisan political preferences is one of the main justifications for having elected sub-central government in a democratic unitary state. The decision attracted a stinging rebuke from Harold Laski, then a professor at the LSE:

the council’s theory of what is ‘reasonable’ in the exercise of discretion is, even though affirmed by its constituents, seemingly inadmissible if it does not square with the economic preconceptions of the House of Lords; it is, it appears, a function of the courts to protect the electorate from the consequences of its own ideas.34

Several Poplar councillors were gaoled for contempt of court after refusing to amend their policies.35 However, central government (then Conservative-controlled) considered this an extreme sanction, and promoted legislation enabling councillors who approved unlawful expenditure to be personally surcharged and disqualified from office for five years.36

Conclusion

One might safely suggest that judicial supervision of council policy-making in the first half of the twentieth century displayed both very expansive and extraordinarily stunted37 perceptions of local government’s role in a modern, ‘democratic’ state. The next section adds more p. 262historical flesh to this analytical skeleton by examining how central government and judicial control of local authorities was exercised in the Butskellite era in respect of an especially important council activity: the provision of housing.

V. Council housing

By 1974, the council sector contained over six million properties and housed seventeen million people.38 Council housing performed several governmental functions in addition to the obvious concern of providing reasonable quality, low-cost accommodation for individual families. The 1945 Labour government regarded an expanding council sector as a useful tool for wealth redistribution. Conservative administrations were less attached to this principle, but shared enthusiasm for public housing’s role in shaping the environment. And both parties found housebuilding’s labour intensive nature a useful tool to regulate overall demand in the economy.

The public sector’s style and scope varied considerably across the country. Local discretion over such macro-issues as stock size and design was not formally structured by tightly defined legislative rules;39 decisions on such matters were largely determined by local election results. The absence of a precise legal framework might appear peculiar given council housing’s important role in central government economic and land development policy. Legal compulsion was however largely unnecessary; councils formulated policies in close consultation with Ministers and civil servants at the Ministry of Housing and Local Government (MHLG) and (subsequently) the Department of the Environment (DoE), in a process which typified the consensual, negotiatory ethos informing central–local government relations between 1945–1970.

However, the ‘national–local government system’40 which dominated housing policy did not offer tenants any significant legal or political control over the management of their homes. Parliament’s allocation of power to local authorities in this area was a paradigmatic example of ‘green light theory’, which afforded individual citizens few legal ‘rights’. The Housing Act 1936 simply placed the ‘general management, regulation and control’ of public housing within the discretion of the local authority with no discernible substantive or procedural constraints. With respect both to macro-issues such as the number and types of dwellings built, and to such micro-questions as allocation mechanisms, rent levels, maintenance standards, tenancy conditions, and management styles, council discretion was not closely regulated by statute.

Nor were the courts eager to subject local authorities’ housing powers to the Wednesbury principles of substantive and procedural ultra vires. In Shelley v LCC,41 the plaintiff was a tenant summarily served with an eviction notice. Shelley had no opportunity to argue against eviction, nor was evidence offered of any breach of the tenancy agreement. The council’s decision would thus seem both procedurally and substantively ultra vires. The House of Lords however declined to intervene, asserting that housing authorities could ‘pick and choose their tenants at will’,42 and evict them in similar fashion.

p. 263Both Parliament and the courts adopted a similarly non-directive role over the issue of the rents that councils charged. Section 83 of the Housing Act 1936 required that rents be ‘reasonable’. This did not make it clear to what extent councils might ‘subsidise’ rents from local taxation. In Belcher v Reading Corpn,43 the Court held that ‘reasonableness’ required councils to balance tenants’ interests, (the presumed beneficiaries of public subsidy), with those of ratepayers (the supposed financiers of the subsidy). Romer J held that rent levels would be unreasonably high only if significantly more costly than similar private sector dwellings.44 Tenants thus had no legal right to subsidised rents. Belcher nevertheless upheld local authorities’ politically accepted role to use rent policies to ameliorate market forces—council house rents would be unreasonably low, and thus breach the council’s fiduciary duty, only if significantly less expensive than comparable private dwellings. The decision thus took a more ‘benevolent’ view of local fiscal autonomy than Roberts v Hopwood.

Litigation over council tenancies presented the courts both with a question of administrative law between an authority and its tenants, and a question of constitutional convention concerning local autonomy from central control. The ‘hands-off’ approach adopted by both Parliament and the courts towards public housing administration reflected the wider norms regulating central–local government relations between 1945 and 1975. Tightly drafted statutes or interventionist case law would have overridden the traditional expectation that councils should govern their local areas, rather than simply administer centrally defined services on an agency basis. The inference one might draw from this is that legalisation of council/tenant relations might have to await a redefinition of the constitutional relationship between central and local government.

The Housing Finance Act 1972

Notwithstanding its evident commitment to principles of local fiscal autonomy prior to introducing the Local Government Bill 1972 to the Commons, the Heath government adopted a more directive policy towards rental levels in the Housing Finance Act 1972. This legislation sought to raise council house rents to levels analogous to those in the private rented sector, while providing rent rebates to poorer tenants. For many councils, this required a substantial rent increase. The government had anticipated that many councils might not wish to implement this legislation; consequently, the Act also gave the DoE stringent enforcement powers against obstructive authorities.45

Several Labour-controlled councils threatened not to apply the Act. Only one authority eventually refused to do so. Clay Cross council in Derbyshire, whose eleven councillors were all Labour Party members, resolutely refused to raise rents.46 DoE attempts to persuade the councillors to implement the Act failed, and they were subsequently surcharged and disqualified. At the subsequent election, local voters returned eleven new Labour councillors, all committed to maintaining the unlawful policy. The conflict was eventually resolved indirectly, in that Clay Cross was one of the many authorities merged into larger councils when the Local Government Act 1972 came into force in 1974.

The Clay Cross episode raises interesting questions both about the relationship between law and convention, and about the nature of the central–local government partnership convention itself. Clay Cross councillors clearly broke the law. In that legalistic sense, the council’s p. 264behaviour was obviously unconstitutional. In terms of convention, the picture is less clear. The traditional approach to housing policy had been that local authorities should have considerable freedom to set rent levels. Thus the Clay Cross councillors considered the Housing Finance Act conventionally ‘unconstitutional’. Relatedly, they regarded their own illegal refusal to implement the Act as entirely legitimate. The practical difficulty which this stance presented for them was of course that they could not draw on the Heath government’s alleged breach of convention as a defence in legal actions arising from their own breach of the law.

Nor was it clear that convention was on the council’s side. There is no great weight of historical practice supporting the notion that councils might legitimately defy the law so flagrantly. From the perspective of conventional practice, the ‘constitutional’ course of action for the council to follow would have been (reluctantly) to have enforced the Act and hope that the Heath government’s breach of convention would lead voters to turn it out of office at the next general election.

The objection to such a strategy is that it suggests the disputed policy is tolerable to the factions which oppose it, and thereby dilutes or diffuses popular antagonism to central government’s preferences. One then faces the argument that had the American revolutionaries, or the 1832 electoral reformers in this country adopted similarly quiescent tactics, they might not have achieved the results we now regard as entirely justified. It may of course be argued that the issue of local electoral control of council house rents in 1972 is qualitatively distinct from the enfranchisement struggles of the 1830s: we might assume that ‘democracy’ within the British constitution is a concept that reached its fullest expression in 1930, when all adults became entitled to vote in parliamentary elections. From that perspective, there would be no justification for any defiance of any statute, for one would remain at liberty to argue and campaign for its repeal. This is a question to which we will return.

VI. From ‘ambivalence’ to ‘authoritarianism’

It is difficult to draw firm conclusions about the constitutional position of local government in the period up to 1980. It is tempting simply to categorise central–local relations in the post-war era as a ‘partnership’ model,47 in which governments of both parties embraced a constitutional morality which accepted that elected local authorities should enjoy appreciable political freedom, and should be persuaded rather than legally compelled to follow central government preferences on those occasions when central government regarded uniformity as desirable. From this viewpoint, we might plausibly conclude that the constitution did indeed by 1975 contain a convention that legislative majorities should generally tolerate a significant, geographically defined separation of powers—that parliamentary self-restraint in deference to the preservation of political pluralism had, as a matter of ‘tradition and settled practice’, become a matter of fundamental moral significance.

We should however recall that there was considerable consensus between the main political parties on major issues in this period. It is not politically intolerable from central government’s perspective for Parliament to maintain a legal structure which allows local councils to pursue their own preferred policies over such important issues as housing if those policies diverge only mildly from central preferences. But in situations where that divergence was significant it is clear that central government would try to invoke formal legal powers in an attempt to force councils to comply with its wishes. Anthony Crosland, a member of Harold Wilson’s Cabinets, offered a more cynical explanation of Ministers’ attitudes towards local autonomy:

On the one hand, they genuinely believe the ringing phrases they use about how local government should have more power and freedom… . On the other hand a Labour government hates it when p. 265Tory councils pursue education or housing policies of which it disapproves, and exactly the same is true of a Tory government with a Labour council. This ambivalence exists in everybody I know who is concerned with relations between central and local government.48

The ‘ambivalence’ adverted to by Crosland swung markedly in favour of greater central control by 1975. Both the Heath (Conservative) government in 1970 to 1974, and the Wilson and Callaghan’s Labour administrations between 1974 and 1979 had been much concerned to control public expenditure in response to an economic crisis. Many areas of government activity, including local authority service provisions, were cut back. The Labour governments sought to control council expenditure through the negotiatory model of central–local relations. Authorities were requested or cajoled to reduce spending, but were not legally obliged to do so. Relatedly, the amount of tax revenue that a council raised was left to be determined at local elections.

Wilson’s government had established a Committee of Inquiry (the Layfield Committee) to investigate local government finance. Layfield suggested that the issue raised profound questions about the nature of British democracy. Close central control over finance and meaningful political diversity could not co-exist. A choice as to which was the more important moral value was required. Layfield’s preference was clear: ‘[T]he only way to sustain a vital local democracy is to enlarge the share of local taxation in total local revenue’.49

The Labour government appeared unwilling to accept the pluralist argument. The 1977 DoE policy paper, Local government finance, analysed local government’s role in a way which relegated localised forms of democracy almost to an afterthought.50 The 1979–1983 Conservative government also wished to reduce local authority spending, but for the Thatcher government tight control of local government expenditure was one part of a systematic attempt to restructure the constitution’s conventional basis.

The first Thatcher administration rejected the Keynesian orthodoxies favoured by previous Labour and Conservative administrations. It adhered instead to a Hayekian philosophy stressing a much reduced social and economic role for state institutions.51 This philosophy entailed substantial reductions in public expenditure on welfare services, areas where local authorities traditionally exercised significant responsibilities and enjoyed appreciable discretion. The Thatcher administration was also determined to impose its preferred moral principles on all levels of government.

This authoritarian outlook did not fit easily with the pluralist model of central–local relations. Nor did it reflect the wishes of even a small majority of the electorate. In the United Kingdom as a whole, the Thatcher government had the support of barely 33% of eligible voters. In Scotland, Wales, and northern England its levels of support were under 25%. The geographical fragmentation of support for Thatcherism was reinforced by the fact that many local authorities were controlled by opposition parties: the Conservatives suffered further considerable losses in the local government elections of 1980 and 1981.52 But the limited nature of the ‘consent’ which ‘Thatcherism’ enjoyed did not persuade the government that it should moderate its wishes to impose its policies on the entire country. For local authorities, this absence of governmental self-restraint had profound consequences.

The legitimacy of the Thatcher government’s plans lay partly in the argument that local authorities were not really ‘democratic’ institutions. Turnout for local elections since 1945 was low: it rarely exceeded 50%, and in 1975 fell below 33% in England. This compares p. 266unfavourably with turnout in general elections, which averaged 70%–80% since 1945.53 The Thatcher administrations suggested these figures revealed a ‘silent majority’ of local electors who needed to be ‘saved’ by national government from the unrepresentative, extremist views of the small minority of political activists controlling local councils.54 Given that the Thatcher governments had themselves attracted the support of barely one third of the national electorate, such arguments might not appear to withstand close scrutiny. The government nonetheless chose to ‘protect’ local people from elected councils by substantially reducing the powers that authorities could wield.

VII. Financial ‘reform’ 1: grant penalties and ratecapping

The Local Government, Planning and Land Act 1980 introduced ‘grant penalties’. The DoE calculated a total spending plan for each authority. Councils were not legally obliged to respect the spending target, but if expenditure exceeded the target, the DoE withdrew a specified amount of grant. This meant that ratepayers had to finance both 100% of extra expenditure and the resultant loss of grant.

Many councils nevertheless continued to spend at higher levels than the DoE wished. Consequently, the Local Government Finance Act 1982 increased the rate of grant withdrawal. From the government’s perspective, this measure was little more successful than its predecessor. Some councils simply imposed ever-higher rates on local voters, and so received ever-lower central government grants, yet still attracted electoral approval.

Some penalised authorities also initiated judicial review proceedings to challenge expenditure targets. This strategy met with mixed results. In R v Secretary of State for the Environment, ex p Hackney London Borough Council,55 the council argued that expenditure targets should be attainable; if the reductions could not be achieved without large cuts in services, surely the target must be substantively ultra vires? The Court refused to enter what it saw as essentially a political dispute between central and local government; this was evidently another non-justiciable issue. Subsequently, in Nottinghamshire County Council v Secretary of State for the Environment,56 the House of Lords indicated that it had no wish to enter this political controversy. Lord Templeman observed that judicial review was not ‘just a move in an interminable game of chess’; rather than commence litigation, councils should ‘bite on the bullet’ and govern their areas within whatever financial constraints the DoE thought appropriate.

Notwithstanding the courts’ reluctance to participate in this dispute, the DoE rapidly concluded that the grant penalties system was not very effective either in curbing council expenditure or in ‘persuading’ local electorates not to vote for high spending parties. Some councils overcame the threat of penalties by raising rates so high that they no longer received any grant. That situation presumably enhances a council’s accountability to its local electorate, given that voters would pay the entire cost of locally provided services. It would also seem to insulate a council from central government control; threats to withdraw grant will not work if councils receive no grant anyway. Thus the government introduced more direct methods to curb council expenditure.

Ratecapping

The post-revolutionary constitution seemed always to have harboured a conventional rule that Parliament would not impose direct legal limits on a council’s power to raise revenue p. 267through the rates. The grant penalties legislation undermined that convention. In the Rates Act 1984, the Thatcher government cast it aside. The 1984 Act introduced the practice of ‘ratecapping’. This simply permitted the DoE to impose a ceiling on the amount of rates revenue a council could raise. The new control was placed on income rather than expenditure. Twenty authorities were originally targeted for capping; eighteen were Labour controlled.

The ‘democratic’ implications of ratecapping were profound; local voters wishing to choose a council providing extensive services simply could not do so, even if they were prepared to finance such services through increased local taxation. They might vote for any party they chose, but their chosen councillors could raise only that amount of revenue which central government deemed appropriate.57

The government had some difficulty in pushing the 1984 Act through Parliament. A few Conservative MPs, and rather more Conservative peers, felt the Act would take too much power away from local authorities and their voters. They shared the sentiments of opposition parties that local government’s conventional status as an independent political organ was being too severely undermined. But with a Commons majority of 140, the government’s problems in the lower house were only minor, particularly as ready resort was made to the guillotine to stifle debate.58 In the Lords, opposition, cross-bench and some Conservative peers were sufficiently alarmed by the 1984 Bill’s anti-pluralist implications to mount a determined amendment campaign, which on occasion reduced the government’s majority to single figures.59 The Bill nevertheless emerged virtually unscathed. The focus of political opposition then shifted to its implementation.

Some Labour councils attacked the Rates Act as constitutionally illegitimate, and resolved to refuse to apply it. They hoped that widespread defiance would trigger a constitutional crisis which would force the government to return to the conventional, fiscally pluralist model of central–local relations. As the deadline for compliance approached, however, support for illegal defiance melted away. Only two councils eventually refused to abide by the Act’s provisions—the London borough of Lambeth and Liverpool city council.60 Many Lambeth and Liverpool councillors were eventually surcharged and disqualified from office as a result of their non-compliance.

Given the inconsistency of the ratecapping principle with conventional understandings of local government’s constitutional role, it is understandable that several authorities declined to take Lord Templeman’s earlier advice to ‘bite the bullet’ of government decisions which denied their electorates the power to vote for local services to be administered as they preferred. Both Birmingham and Greenwich councils initiated successful judicial review proceedings against ratecapping in 1986.61 But these proved short-lived successes. The government had by now tired of defending its policies in the courts; judicial review was a time-consuming process, in which favourable outcomes could apparently not be guaranteed. Consequently, the government began to respond to defeats in the courts by promoting retrospective legislation.

The highly unconventional constitutional character of retrospective legislation has already been adverted to.62 The Thatcher government saw no impediment to using retrospective legislation to curb local government’s financial independence; what had previously been regarded as a presumptively ‘unconstitutional’ exercise of Parliament’s sovereign power, invoked on a cross-party basis in response to extraordinary situations, had become a routinised, partisan feature of government policy.

p. 268Grant penalties and ratecapping comprised the first two phases of the Thatcher governments’ efforts to redefine conventional constitutional understandings about central–local financial relations. We address the third phase later in the chapter. Before doing so however, we devote some further attention to the courts’ role in determining the limits of local authorities’ political and economic autonomy.

VIII. Collective politics and individual rights: the judicial role

A notable consequence of the grant penalty and ratecapping policies was that it became a normal aspect of central–local relations for councils to challenge the legality of government action. Between 1945 and 1980 it was rare for disagreements between central and local government to be resolved in this way.63 Disputes were generally settled through negotiations which eventually produced acceptable compromise. After 1980, such compromises proved less readily attainable. But the so-called ‘juridification’64 of the financial relationship between central and local government was not the only issue relating to local democracy in which the courts were embroiled.

‘Fares fair’: Bromley London Borough Council v Greater London Council

While most of the country had waited until the Local Government Act 1972 for its Victorian local government structures to be modernised, local government in London was overhauled in the mid-1960s. Many small councils were abolished, and new larger authorities created. The London county council was also replaced by a strategic council with limited functions for the entire capital. The ‘Greater London Council’ (GLC) assumed responsibility for, among other things, public transport systems, waste collection, major planning proposals, and housing provision. An elected ‘Inner London Education Authority’ (ILEA) was also created, with wide-ranging education functions. The GLC’s creation was the result of a prolonged process of negotiation, initiated by a Royal Commission investigation. The Commission’s proposals were subsequently introduced as a Bill and, following substantial amendment in response to the wishes of the opposition and various local authorities, enacted in 1965.65

The GLC’s most noteworthy policy in the 1980s attempted to shift the burden of transport provision in London away from cars towards greater use of buses, tubes, and trains. The GLC’s transport role was set out in the London (Transport) Act 1969, a statute introduced by Wilson’s second Labour government. Section 1 required the GLC to provide an ‘economic, efficient and integrated’ transport system for Greater London. The Act did not give the GLC direct control of London’s bus and underground and overground rail networks; rather it created a body called the London Transport Executive (LTE) to co-ordinate and manage services. Following the ‘green light’ philosophy then prevailing in parliamentary circles, the 1969 Act did not specify precisely how the LTE should operate; but s 7 indicated that the LTE should as far as practicable avoid making a financial loss in successive years. The Act envisaged that the LTE and the GLC would work closely together, and in particular s 3 empowered the GLC to make grants to the LTE for ‘any purpose’.

We might here ask what ‘purposes’ the 1969 Parliament intended London Transport to serve. From a social democratic perspective, the system might be seen as a social service, with operating losses subsidised by ratepayers. By encouraging people to use trains and p. 269buses rather than cars one presumably reduces traffic congestion and air pollution, speeds up journey times, reduces overcrowding on trains, and makes public transport a more pleasant and reliable way to travel to work and to leisure activities. An alternative, Hayekian view would see London Transport as a business like any other, providing a system that made an overall profit. If the LTE or GLC wanted to run loss-making routes, they would have to subsidise them through profits on other routes, not by taking subsidies from ratepayers.

Scrutiny of the Act, and of Hansard, indicates that Wilson’s government was unclear about its preferences. When introducing the Bill, the sponsoring Minister had said that:

… the GLC might wish … the LTE to run services at a loss for social or planning reasons. It might wish to keep fares down at a time when costs are rising and there is no scope for economies. It is free to do so. But it has to bear the costs.66

But the Minister also stressed that the LTE should attempt to break even. Consequently, one could find neither a legislative nor governmental answer to the crucial question of whether the GLC could use s 3 to cancel out successive deficits the LTE might incur if it ran London Transport as a ‘social service’ rather than a ‘business’.

In the 1981 GLC elections, Labour put forward a programme (called ‘Fares Fair’) to increase bus and tube services, and simultaneously cut fares by 25%. ‘Fares Fair’ would cost £120m per year; a sum comprising a £69m operating deficit, and a £50m loss in central government grant because the programme took the GLC over its expenditure target. The Labour group planned to raise this money by levying a special rate on all the London boroughs.

Labour won a majority in the GLC elections. A legal challenge to Fares Fair was immediately launched by the Conservative controlled Bromley council, a suburban London borough liable to pay the supplementary rate. The issue before the Court was straightforward: what had Parliament meant when it ordered the GLC to maintain ‘economic, efficient and integrated’ transport services? Was London Transport a social service, heavily subsidised by London ratepayers? Or a business, whose primary concern should be to avoid operating losses? Or was that choice a matter for the GLC’s elected representatives to make?

The House of Lords decided unanimously against the GLC.67 The majority held that s 1’s reference to an ‘economic’ service required the GLC to ensure that the LTE ran on a ‘break even’ basis. The GLC could use s 3 to provide a subsidy to make up for unforeseen losses, or to compensate for exceptional circumstances, but it was not ‘economic’ deliberately to adopt a s 3 subsidy policy which underwrote a long-term operating deficit. Lord Diplock adopted a slightly different argument. He considered that the argument over the first component of the policy’s cost, the £69m rating loss, was finely balanced. However he did not feel obliged to resolve this question, for the second element of the cost, the loss of £50m of government grant, clearly breached the council’s fiduciary duty to its ratepayers.

The judgments obviously owe much to Roberts v Hopwood’s misapplication of the fiduciary duty doctrine. As in Roberts, the House of Lords did not consider that electoral approval had any bearing on the policy’s legality. There is a temptation to explain the outcome of Bromley simply in terms of judicial bias; the GLC lost because a conservative House of Lords did not approve of cheap bus fares. This rather simplistic political reductionism (which in effect alleges that the courts are constantly engaged in an anti-Labour conspiracy which subverts the sovereignty of Parliament, the separation of powers, and conventional models of central–local relations) has attracted some support from authoritative commentators.68 The argument is p. 270difficult to sustain. In respect of Bromley, one cannot avoid the conclusion that Wilson’s government presented Parliament with an ambiguous Bill, which neither house clarified. The Act’s text lent itself to two irreconcilable interpretations; it is unsurprising that the judiciary favoured the more fiscally conservative meaning.

Nevertheless, the re-emergence of the warped version of the fiduciary duty doctrine intensified the juridification process. Its high profile in Bromley led many councils routinely to seek counsel’s opinions on the legality of their expenditure plans.69 Yet it was not simply questions of fiscal autonomy that made local government such a significant area of constitutional controversy in the 1980s.

IX. Institutional ‘reform’: the abolition of the GLC and metropolitan counties

The Local Government Act 1985 was a straightforward measure to abolish the GLC. The commitment to do this was belatedly slipped into the Conservative Party’s 1983 election manifesto by the Prime Minister.70 The governmental investigations preceding the creation of the GLC had lasted several years and comprised several thousand pages of investigation and proposals. The DoE report recommending abolition, Streamlining the cities,71 took two months to produce, spanned thirty-one pages, and involved no significant consultation with opposition parties, local authorities, or the people of London. Its recommendation was that the council should be abolished and its functions given to the London boroughs or boards appointed by central government. The GLC was simply presumed to be an unnecessary tier of government, which added to bureaucracy without producing any worthwhile benefits.72

The GLC campaigned skilfully against abolition. The campaign questioned the constitutional legitimacy of simply doing away with an elected local authority which represented over five million people, and on the technical efficiency of scrapping an authority which provided co-ordinated strategic services for one of the world’s most important cities. The GLC attracted considerable public support. It also seemed that some Conservative MPs and many Conservative peers would vote against the government on this issue, as they had over ratecapping.

The government’s abolition timetable had two parts. The Local Government (Interim Provisions) Bill 1984 proposed that the GLC elections scheduled for May 1985 would be scrapped. Arrangements for transferring the GLC’s powers to new bodies would not be effective until April 1986, and would be introduced in a subsequent Bill early in 1985. Parliament was thus being asked to approve the details of abolition before debating the merits of the central question. This procedural objection was compounded by the Bill’s substantive effect. During the eleven-month gap between May 1985 and April 1986, the GLC’s powers would be wielded by ‘interim councils’ based on the various London boroughs, which in effect would give the Conservative Party majority control of powers which the GLC’s electorate had bestowed on the Labour Party.

The Lords inflicted a substantial defeat (191 votes to 143) on the government in Committee. The government then conceded that the existing GLC councillors could remain in office until p. 271the abolition in 1986.73 The government did not however concede on the cancellation of the 1985 elections, presumably because it feared that London’s voters might use it to signify massive popular disapproval of the abolition proposal. The Lords’ stance did much to enhance its resurgent reputation; The Times hailed the government’s defeat as ‘a triumph for the principles of constitutionalism and specifically for the principle of a bicameral Parliament’.74 Upper house opposition continued when the abolition Bill itself was debated. An amendment creating an elected ‘co-ordinating authority’ to supervise all of the GLC’s former powers was lost by only seventeen votes.

That the Bill was ultimately enacted virtually unscathed illustrates the fragility of conventional constitutional principles opposed by a determined central government with a large Commons majority. The geographical boundaries of local government have been restructured many times before. But in the modern era, the process has not been conducted in so pre-emptory a way, nor on the basis of substantive terms prompting so much party political dispute and public opposition, and not without the creation of a new elected body to assume the powers of the abolished authorities.

X. Privatising local government

The abolition of the capital city’s elected council is perhaps the most graphic example of local government’s declining constitutional significance since 1980. But it is merely one part of a more complex tapestry. The GLC abolition Bill, seen in conjunction with the previous reforms to local government finance, was described in 1984 as the ‘most determined assault on local government autonomy in recent history’.75 It is overly simplistic to suggest that this assault was ‘anti-democratic’ in nature. Rather it represented the triumph of a highly centralised, authoritarian perception of minoritarian democracy over a decentralised, consensual perception of pluralist democracy. This trend raises large questions as to the adequacy of Britain’s contemporary constitutional arrangements; but before turning to that issue it is appropriate to examine one other legislative innovation pursued from 1980 onwards.

Housing—individuated and collective privatisation

A corollary of councils’ traditional autonomy in housing management was that neither Parliament nor the courts granted tenants legally enforceable rights against their landlords over the way that their homes were managed. Many councils evidently thought that tenants’ ‘rights’ were unnecessary, considering councils’ ‘democratic accountability … a sufficient safeguard against any abuses’.76 But by 1975, it was widely accepted that council house management could often justifiably be accused of inefficiency and insensitivity to tenants’ wishes.77

The Callaghan government’s 1979 Housing Bill included a ‘Tenants’ Charter’. The Charter limited councils’ eviction powers, forbade certain restrictive tenancy conditions, and would have required authorities to establish a Tenants’ Committee which was to be consulted on all aspects of housing management, including allocation policies and rent levels. The Bill fell with the Labour government in 1979.

The Tenants’ Charter subsequently promoted by the first Thatcher government, enacted in the Housing Act 1980, superficially resembled Labour’s Bill. The new legislation added a ‘right to buy’ for existing tenants, and dropped the Tenants’ Committees proposal. The 1980 p. 272Act fundamentally recast the legal basis of a council’s relationship with its tenants. In granting tenants legally enforceable rights and significant security of tenure, the Act necessarily curtailed local authority autonomy in respect of its remaining tenants. But equally significantly the ‘right to buy’ provided a mechanism for tenants to become owners of their homes. The ‘right to buy’ entitled council tenants of three years standing to buy their home at a discount of 33% on its market value, with an extra 1% for each year of additional occupancy, to a 70% maximum. Over a million units were sold during the 1980s.

The right to buy was a controversial policy in 1980. Some Labour councils decided they did not want to apply it: several decided to make it difficult for tenants to become owner-occupiers.78 The 1980 Act had given the DoE sweeping interventionist powers against authorities suspected of obstructing sales. Section 23 provided that where it appears, to the Minister, that the tenants are experiencing difficulty in buying their houses, the Minister may send in centrally appointed Housing Commissioners to take over the sales process.

Following complaints from tenants in Norwich, the Minister invoked s 23. The council challenged the use of this power, arguing it had deployed staff on other responsibilities which it was obliged to undertake and so there was nothing ‘unreasonable’ about the delays that tenants experienced. In Norwich City Council v Secretary of State for the Environment, the Court of Appeal characterised s 23 as: ‘draconian … without precedent in legislation of this nature’.79 But whether the council’s action was reasonable was irrelevant. The person whose conduct was in question was the Minister—was his intervention Wednesbury unreasonable? As no sales at all had been completed in Norwich in the first seven months of the Act being in force it would seem difficult to categorise his action in that way. His intervention was clearly a ‘legal’ exercise of executive power. Whether s 23 was itself a ‘legitimate’ exercise of legislative power is a different and more difficult question.

The right to buy enabled many less wealthy householders to become owners, and therefore to benefit from long-term increases in property values and to escape from a restrictive landlord–tenant relationship. The policy’s full impact on local government’s role as a housing provider is, however, only evident when one also considers central government policies towards the building of new council housing. The Thatcher administrations placed significant restrictions on new construction. Proceeds from the right to buy exceeded £9b by 1986. But councils were permitted to spend only a fraction of those receipts on new housing. Fewer council houses were built in the 1980s than in any decade since 1920. While over one million units were sold, only 330,000 were built.80

‘Opting out’ and Housing Action Trusts

Nevertheless, over 20% of the population still lived in council houses in 1988. Few of these tenants could afford to buy their homes. Consequently the DoE sought other methods further to reduce the local authority’s landlord role. The Housing Act 1988 empowered tenants to ‘opt out’ of local authority control and ‘vote’ for a new, government approved landlord. Early votes indicated little tenant support for wholesale privatisation. This perhaps suggests that tenants, if not central government, continued to see councils as legitimate and desirable providers of subsidised housing.

Part III of the 1988 Act also introduced the ‘Housing Action Trust’ (HAT). HATs were government appointed boards which assumed control of public housing and land use planning in government designated inner-city areas. HATs were to act as temporary landlords, responsible for upgrading the housing and thereafter selling it, either to current occupants or new private p. 273sector landlords. HATs attracted little support from council tenants initially. Seven estates were originally targeted for HAT schemes. By late 1990, none had voted to leave council control. Several estates subsequently chose HAT status in 1991. This was perhaps not an entirely ‘free’ choice, in so far as prospective HATs were offered funds for refurbishment and redevelopment not available to local authorities.81

‘Ring-fencing’ housing revenue accounts

Legislative initiatives also reduced local authorities’ traditionally loosely confined discretion to set rent levels. Significant reductions in DoE rent subsidies since 198082 compelled many councils to raise rents well above prevailing inflation rates. Councils’ scope to subsidise rents from their general revenue was obviously curbed by general DoE expenditure constraints during the 1980s. The Local Government and Housing Act 1989 reinforced this indirect pressure by ‘ring fencing’ councils’ housing budgets. Local authorities could no longer use their general revenue for housing purposes; council stock would have to run on a ‘break even’ basis. Ring fencing provoked vigorous criticism from Labour and Conservative authorities. Many considered it an unwarranted, further limitation on council autonomy. Twenty authorities increased rents by over 30% in 1990, with Conservative controlled Canterbury DC and South Buckinghamshire DC levying 54% and 53% rises respectively.

Conclusion

The Thatcher and Major reforms to local authority housing provision system were concerned with curtailing ideological as well as fiscal pluralism, but it is frequently difficult to disentangle the two issues. The penultimate section of this chapter consequently returns to questions of local government finance, in discussing the rise and fall of the ‘poll tax’.

XI. Financial ‘reform’ 2: the community charge

By 1980, the rates were seen by all political parties as having several defects. Since rates were levied on householders, many citizens were not legally obliged to pay them. Consequently many people were presumed to be immune from the financial consequences of voting for increased local authority spending. And since business ratepayers had no vote at all, their only way to register disapproval of council policies was to relocate—an often impractical option. A second flaw was that there was no direct link between the size of a rates bill and the services provided. Since rates were based primarily on property values, the amount a householder or business paid could depend more on the value of her house or shop than her council’s spending plans. Thirdly, rates were not sensitively related to ability to pay. People could live in an expensive house but have only a limited income: the apocryphal little old lady living in her family home on a widow’s pension is the obvious example. On the positive side, rates were easy to administer, and, since they were levied on properties not people, were difficult to evade. Rates reform was thus a popular but impractical political slogan. When Leader of the Opposition, Thatcher had promised her first administration would abolish the rates; that pledge was quietly forgotten.83 Indeed, the Thatcher government concluded in 1983 that: ‘rates should remain for the foreseeable future the main source of local revenue for local government’.84

Reform reappeared on the political agenda in 1986, when a DoE report, Paying for local government, recommended replacing the rates with a ‘community charge’ or ‘poll tax’. The p. 274government’s volte-face seems to have been triggered by the evident failure of grant penalties and ratecapping to curb the spending of Labour controlled local authorities. The poll tax would be levied on a flat rate basis on everyone resident in a local authority area. Some groups would be exempt, and there would be a limited rebate scheme for people on low incomes. Local councils would set the community charge for their respective voters; central government would set a uniform rate for businesses. Under the rates, councils had set both figures.

The government assumed that a flat rate, universal tax would convey to voters the true cost of electing a council providing expansive (and expensive) services. What is less clear is whether the government intended that such transparency would ensure that local electoral choices would be made on the basis of fully informed consent (in which case they would presumably have to be respected as meaningful exercises in democratic practice), or whether it hoped that opposition parties would be ‘priced out’ of office.

As originally conceived, the community charge would not be subject to capping. This suggests that the government was willing to give local electorates unimpeded freedom to determine their council’s expenditure. However when it became apparent that many councils still proposed to finance high spending through very high community charge levels, the government introduced capping powers into the Bill.85 Charge capping seems completely inconsistent with the principle of increased political accountability between a council and its electorate. If a council is capped, voters who want lots of services and are prepared to pay for them cannot do so.

Furthermore, the poll tax’s very nature suggests the latter objective was predominant. A flat rate tax is necessarily highly regressive—it falls with disproportionate severity on taxpayers with low incomes. This evidently led some Cabinet Ministers, foremost among them Nigel Lawson, to regard it as an ill-advised venture. Leon Brittan (then Home Secretary) also voiced doubts, on the basis that compulsory registration for the tax might lead some people to ‘disappear’ from the electoral register to evade payment: the charge might thus be portrayed as a tax on voting. But in accordance with the unanimity limb of the convention of collective ministerial responsibility, neither Lawson nor Brittan resigned over the issue; their dissent was kept secret until they published their memoirs.

The Bill which eventually became the Local Government Finance Act 1988 met sustained opposition in the Commons and the Lords. In the Commons, the government’s greatest difficulties were caused by one of its own backbenchers, Michael Mates, who moved an amendment relating the amount of poll tax levied to the individual’s ability to pay. Government whips exerted considerable pressure on Mates to withdraw. When he declined to do so, they turned their attention (with more success) to Conservative MPs expressing support for the amendment. Notwithstanding such efforts at ‘persuasion’, thirty-eight Conservative MPs voted with Mates, while thirteen abstained.86 In the Lords, a similar amendment was defeated by mobilising the backwoodsmen. Local authorities’ legal efforts to challenge the Act’s implementation were unsuccessful.87 However a more broadly based political campaign against the poll tax proved considerably more effective.

A step too far? The demise of the poll tax

Many local authorities had opposed the poll tax because of its regressive nature and the threat that it posed to their political autonomy. This disquiet straddled party boundaries; Conservative councillors were among the fiercest of critics, some resigning the party whip p. 275in protest. Concern among councils increased markedly when they faced the prospect of collecting the tax.

The legislation subjected householders to fines, initially of £50, and thereafter £10 per day, for not providing details of people living in their properties. If registered individuals refused to pay the tax, a local authority could seek a ‘liability order’ from the magistrates’ court. This allowed councils to use various enforcement measures, including attachment of earnings, deductions from welfare benefits, and distress—an archaic remedy which enables private bailiffs to seize and sell a debtor’s property. Refusal to pay the poll tax could (and did) ultimately lead to imprisonment. Moreover, since the legislation made a designated individual liable for his/her spouse/cohabitee’s payment, it was also possible to be jailed for someone else’s non-payment.

The Labour Party had pledged to repeal the legislation if it won the next general election, but did not advocate non-payment. This reflected a legalistic interpretation of appropriate constitutional behaviour; how could the party present itself as an alternative government if it set a precedent for ignoring legislation, a precedent which might be used against future Labour administrations? Unofficially, however, many Labour Party members (including several MPs and many councillors) supported non-payment.

Opposition to the tax was magnified by a loose-knit group called the ‘All-Britain Anti-Poll Tax Federation’.88 Its leaders had links to far-left parties, but the membership appeared to cross party lines and included people who had not previously been politically active. The Federation’s techniques included encouragement of non-payment, marches and demonstrations, offering legal assistance to individuals facing court action, and a practice called ‘scumbusting’, in which members formed a human barrier around the houses of people issued with liability orders, thereby preventing bailiffs from seizing goods.

Due in part to the success of the Federation’s activities, non-payment rates reached 50% in some areas.89 There was initially appreciable variation in the enthusiasm with which local authorities approached the collection process. However, when faced with the income shortfall caused by mass non-payment, even some of the more radical Labour councils began to make full resort to all collection processes. The Audit Commission, a central government watchdog of local authority finance, predicted that as many as four million people might have to be prosecuted in 1991 and 1992 to collect poll tax arrears.90

Conclusion

If the story ended here, it would be difficult not to regard the poll tax policy as revealing major deficiencies in Britain’s constitutional structure. One might point to minority electoral approval for the principle; to rebellions within the parliamentary Conservative Party when the tax was enacted; to clear public opposition to the policy in opinion polls; to the display of more overt dissatisfaction through widespread non-payment; and to very limited enthusiasm on the part of the local politicians and professional officers responsible for the tax’s collection. Despite all this, the poll tax’s legality remained beyond challenge. As previous chapters have already suggested however, the operation of the British constitution is shaped as much, if not more, by issues concerning the legitimacy of government behaviour than questions over its legality. And from the perspective of legitimacy, the poll tax proved to have significant defects.

As chapter eleven reveals, Thatcher’s fall from power in 1990 was caused in part by her attitude towards the European Community. But her association with the poll tax also made her an electoral liability for many Conservative MPs, who feared that they would lose their seats at the next general election if the tax was not removed. Unsurprisingly, therefore, Michael p. 276Heseltine’s challenge to Thatcher for the party leadership in 1990 was coupled with an announcement that he would, if elected, institute a thorough review of the community charge. John Major made a similar commitment when announcing his candidacy for the leadership. His government subsequently introduced a Bill replacing the poll tax with a so-called ‘council tax’, based primarily on property values. While less regressive and easier to collect than its predecessor, the council tax did not indicate any resurgence of pre-Thatcherite conventions concerning local authority fiscal autonomy: the DoE retained the power to ‘cap’ council tax levels. Nor did the Major government make any attempt to restore local autonomy in such as areas as housing policy. Notwithstanding the demise of the community charge, the ‘partnership’, pluralist model of central–local relations was by 1997 becoming ever more clearly a feature of past constitutional history rather than current constitutional practice.

XII. The Blair government’s reforms

The Blair governments did not promote any substantial reversal of this general trend. Labour’s 1997 election manifesto offered several abstract statements which might be thought to herald the restoration of much of local government’s former autonomy, for example that: ‘Local decision-making should be less constrained by central government, and also more accountable to local people’.91 But on the crucial issue of councils’ fiscal powers, the manifesto promised only minor tinkering with, rather than reversal of, the existing legal position: ‘Although crude and universal council tax capping should go, we will retain reserve powers to control excessive council tax rises’.92 Nor did the manifesto envisage any substantial restoration of local authorities’ influence over education policy, housing provision, or transport services.93 The suggestion that the Labour Party had accepted the Thatcherite position that councils’ freedom of political judgement extended only to doing things of which central government approved was powerfully conveyed by the following passage:

Every council will be required to publish a local performance plan with targets for service improvement, and be expected to achieve them. The Audit Commission will be given additional powers to monitor performance and promote efficiency. On its advice, [central] government will where necessary send in a management team with full powers to remedy failure.94

In a major policy statement, published in 1998 as a pamphlet entitled Leading the way,95 Prime Minister Blair suggested that local authorities’ proper constitutional role is to serve as the agents of central government:

However much government does at the centre it will often be dependent on others to make things happen on the ground where it matters. And that is where local government comes in. The delivery of the government’s key pledges and policies also requires modern local government helping to make change happen.96

The Prime Minister’s message was blunt. If councils did just what the government wants them to do:

You can look forward to an enhanced role and new powers. Your contribution will be recognised. Your status enhanced. If you are unwilling or unable to work to the modern agenda then the government will have to look to other partners to take on your role.97

p. 277The notion that local government has a legitimate constitutional role to play in enabling voters to express opposition or antagonism to central government policy did not enter the Prime Minister’s argument. In that very important respect, Prime Minister Blair seemed to share common constitutional ground with his two immediate predecessors. The policy objectives underlying the Local Government Acts 1999 and 2000 went some way, albeit only a short way, towards refuting that assumption.

The Local Government Acts 1999 and 2000

The central policy objective contained in the 1999 Act was to subject all local authority decision-making to a ‘Best Value’ regime. The ‘Best Value’ principle was rather more expansive than a crude statutory reassertion of the Roberts/Bromley notion of the fiduciary duty, but was essentially a notion of ‘efficiency’ in which central government had the sole responsibility to determine what ‘efficient’ actually means. Councils were subject to rigorous inspection by central government bodies—primarily the bizarrely named Best Value Inspectorate—to establish that these efficiency targets were being met. Those councils which were successful when measured against this yardstick would be rewarded with extra responsibilities and resources. Those which failed might find that their powers removed and transferred to government-appointed boards.

The Blair governments’ understanding of ‘efficiency’ in the local government context did not encompass the principle that local electorates should be able to instruct their authorities to pursue policies with which central government disagrees. The Best Value regime indicated that the Blair administration were as contemptuous as their immediate Conservative predecessors of the principle that local councils should govern rather than simply administer their areas.98

A second innovation provided for by the 2000 Act pointed however in a potentially more pluralist direction. The Act permits local authorities to hold a referendum in which voters may decide if they wish their council to be headed by a directly elected Mayor, who would wield a substantial portion of the authority’s (admittedly very limited powers). A directly elected Mayor of cities such as Manchester, Birmingham, or Leeds would exercise significant political authority, even though she would actually wield few governmental powers. The new policy did not however seem to attract much enthusiasm from local voters. By February 2002, referenda had been held in only twenty-two areas. In fifteen of those areas, voters had rejected the directly elected Mayor option.99

The governance of London

In this general context, the Blair government’s plans to introduce a new tier of elected local administration in London seem oddly out of place; for they raised the very real possibility that the Blair government would create a new locus of political power which might afford it substantial discomfort in both the short and longer term.

A Mayor and Assembly for London

A government white paper published in 1998, began by suggesting that:

Since the abolition of the GLC in 1986, London has lacked strategic direction and leadership. Londoners and London organisations have complained about confused responsibilities, duplication of effort, conflicting policies and programmes and a general sense of drift. No one was in charge or able to speak up for London.100

p. 278Rather than recreate the GLC, the government proposed to establish a ‘Greater London Authority’ (GLA), composed of a directly elected Mayor and an elected Assembly of twenty-five members. The proposals were subsequently enacted virtually unamended in the Greater London Authority Act 1999. The Assembly would be the junior partner in the enterprise; it seemed likely to be a body possessing little political influence and even less political power.101 The proposals for the Mayor, in contrast, presented a considerable constitutional curiosity, for the government’s plans envisaged an office which exercises little practical political authority but which could prove important in terms of political influence.

The GLA has been given some practical responsibility for several areas of governmental activity—including transport, land planning, economic development, environmental protection, and policing.102 The Mayor is empowered to act both as the formulator and executor of most policy decisions, advised by a ‘Cabinet’ of her own choosing. The Assembly has a potentially significant checking and amendment role in respect of the GLA’s budget, and some entitlement to be consulted by the Mayor over the formulation of policy. The Assembly may also initiate reports and investigations on matters of concern to the administration of the city, and is empowered to require the Mayor to explain and defend her activities in an annual report to its members.

Financial autonomy

The government’s explanation of the motives behind the financial system it intended to impose on the GLA sounded distinctly Thatcherite in tone:

The new finance system will… . meet the government’s objectives of efficiency and value for money in public spending, while keeping the overall tax burden as low as possible. The finance system will incorporate incentives to be efficient, be durable and robust, and seek to minimise the scope for conflict with central government.103

The GLA has not been granted any powers to levy income tax, or a property tax, or a sales tax directly on local residents and businesses. It can raise income through the council tax, but it will do this indirectly by charging a precept to local authorities within the GLA area which will be quantified on each borough’s own council tax forms.104 The GLA’s precepting power is subject to capping under the same rules as currently apply to other local authorities’ council tax levies. The GLA will also derive income from government grants, charges for services, and the sale of capital assets. The white paper made no attempt to quantify the relative importance of these various sources of finance within the GLA’s overall budget, which it suggested would initially be some £3.3b.

The GLA’s fiscal power is limited to decisions about viring sums of money within its overall budget from one function to another. Even here, however, the GLA’s discretion is tightly restrained. A substantial proportion of the GLA’s grant revenue—particularly in respect of transport and economic development matters—is earmarked by central government for specific capital or recurrent expenditure. The GLA has no viring power at all over such monies. Bluntly put, the GLA has no significant degree of budgetary autonomy.

This lacuna strikes a powerful blow at the heart of the Blair government’s claim that the GLA would substantially enhance the democratic basis of London governance. A meaningful notion of ‘government’ surely demands that multi-function government institutions enjoy appreciable autonomy to raise and spend tax revenues, while a meaningful notion of democratic accountability surely demands that voters have some appreciable say in how much tax revenue their elected representatives raise and spend on their behalves. The GLA demonstrably fails both tests.

p. 279The electoral process

The Mayor is chosen by the supplementary vote (SV) system.105 Electors may select a first and second choice candidate. Should any candidate not receive 50%+1 of the first preference votes, all but the two candidates attracting the most first preference votes are eliminated. Any second preference votes of defeated candidates which were given to the top two candidates will then be reallocated, leaving the person with the greater number of first and second preference votes as the winner. To discourage frivolous or crank candidates, a ‘significant deposit’ would be required, which would be returned only if the candidate gains 5% or more of the vote. Candidates also have to be nominated by a ‘significant number’ of registered voters from each borough. These proposals will presumably restrict the field to the representatives of established political parties.

Assembly candidates must pay a 5% threshold deposit and be nominated by a set number of voters in their chosen constituency. The Assembly is elected by the additional member system (AMS). Fourteen seats are allocated to constituencies, which will return members on a first past the post basis. The remaining eleven members are drawn from party lists, in numbers which ensure that party representation closely reflects the overall distribution of the vote. The use of AMS means it is improbable that the Assembly will contain a single party majority, a fact which may have some significant impact in the way in which the Assembly goes about discharging its (limited) governmental duties.

Conclusion

In an interesting break with tradition, the government had promoted legislation allowing a referendum to be staged in London on the desirability of proceeding with the GLA proposals. The vote was held on 7 May 1998. Some 70%+ of those voting supported the government’s plans. Turnout however was barely 35%, so the government could hardly claim a ringing democratic mandate for its plans.

The low turnout is not inconsistent with the participation levels recorded in local authority elections in general in recent years. Nor indeed was the Blair government’s response to that low turnout significantly out of line with that of previous Conservative governments. It appeared unimpressed by the argument that voters may not turn out for local elections because they believe (quite justifiably) that local authorities no longer have any substantial political role. A substantial expansion of local power as a cure for low turnout was not on the government’s agenda.

Conclusion

The Liberal Democrat Party had consistently championed a more expansive role for local authorities during the last third of the twentieth century, and that sentiment appeared to be endorsed in the Conservative/Liberal coalition’s 2010 Programme for government:

We will promote the radical devolution of power and greater financial autonomy to local government and community groups. This will include a review of local government finance.106

However, the Localism Act which was enacted in 2011 seemed designed to reduce local authorities’ powers still further by devolving some of their existing powers to sub-local bodies. While there is certainly eminent support for the notion that this initiative may be an effective way of encouraging more citizens to engage with political questions,107 it is difficult to see that enactment of the Bill will better equip local authorities to function as a meaningful p. 280counterweight to central government on important political issues.108 Section 1 of the Act granted local authorities a ‘general power of competence’, which would enable them to do ‘anything that individuals generally may do’. This might be thought to enhance council’s political powers, in so far as they would no longer have to find an explicit grant of statutory authority to pursue innovative policies. Section 2 however provides that s 1 may not be used to bypass existing restrictions on local authority powers, and—more importantly—the Act has not loosened central government controls over local council’s financial autonomy. Section 1 cannot credibly be seen as reversing the post-1980 legislative trend towards reducing the political significance of the local government sector.

It was suggested in chapter nine that legislative self-restraint in deference to ‘traditionally fundamental’ political and moral principles might be the most important of Britain’s constitutional conventions. There is room to dispute the precise conventional understanding of central–local relations in the modern era, but the preponderance of evidence suggests that prior to 1980 governments of both parties considered that maintaining some significant simultaneous political pluralism within the overall structure of government was an important constitutional principle.

We might argue whether that principle should be regarded as a ‘convention’ in the orthodox sense, but there is little scope for disagreement as to its importance in the context of modern British society. The recent history of local government suggests that the pluralist principle was ignored by the Conservative administrations which enjoyed a Commons majority from 1979 onwards and by the Blair and Brown Labour governments which succeeded them.

Yet it is a profound paradox of constitutional history that just as the Thatcher and Major governments so successfully deployed their Commons’ and Lords’ majorities to dismantle the country’s internal structures of post-war pluralism and eradicate the influence of Butskellite philosophy on the government process, so they faced increasingly formidable opposition to their ideological agenda from a hitherto unexpected quarter. Chapter eleven addresses the impact on traditional constitutional understandings of governmental power of Britain’s membership of the European Community.

Suggested further reading

Academic and political commentary
  • Sharpe J (1970) ‘Theories and value of local government’ Political Studies 153
  • Bogdanor V (2009) The new British constitution ch 10
  • Loveland I (1999) ‘Local authorities’ in Blackburn R and Plant R (eds) Constitutional reform
  • Loughlin M (1986) Local government in the modern state ch 1
  • Laski H (1926) ‘Judicial review of social policy in England’ Harvard LR 832 p 844
  • Keith-Lucas B (1962) ‘Poplarism’ Public Law 52
  • Mitchell A (1974) ‘Clay Cross’ Political Quarterly 165
  • Butler D, Adonis A, and Travers T (1994) Failure in British government: the politics of the poll tax
  • Wilson D (2001) ‘Local government: balancing diversity and uniformity’ Parliamentary Affairs 289
  • Case law and legislation

    Bromley LBC v GLC [1983] 1 AC 768

    Roberts v Hopwood [1925] AC 578

    Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223

    A-G v Aspinall (1837) 40 ER 773

    Notes

    • 1 In the sense of the amendment process in Art 5.

    • 2 Elcock H (2nd edn, 1986) Local government ch 1.

    • 3 See Jennings I (4th edn, 1960) Principles of local government law ch 2.

    • 4 Plucknett (1960) op cit ch 3.

    • 5 See Loughlin M (1985) ‘Municipal socialism in a unitary state’, in McAuslan and McEldowney op cit; (1986) Local government in the modern state ch 1.

    • 6 Brock op cit p 317.

    • 7 See Turbeville (1958) op cit p 351; Brock op cit p 317.

    • 8 See generally Turbeville (1958) op cit pp 351–358.

    • 9 Quoted in Ibid, at 354.

    • 10 (1837) 40 ER 773, 2 My & Cr 613.

    • 11 (1837) 40 ER 773 at 777.

    • 12 Ibid. See also A-G v Wilson (1840) 41 ER 389.

    • 13 The local electoral franchise was more expansive than its parliamentary counterpart. The property qualification was lower and women were enfranchised some years before being permitted to vote for members of the Commons.

    • 14 See Loughlin M (1994) ‘The restructuring of central–local government relations’, in Jowell and Oliver op cit.

    • 15 This role successively passed to the Ministry of Health, the Ministry of Housing and Local Government, and, from the 1970s onwards, the Department of the Environment (DoE). The relevant department is now the Department of Communities and Local Government.

    • 16 For more detail see Hampson W (2nd edn, 1991) Local government and urban politics pp 17–20.

    • 17 See ‘The sources of constitutional conventions’, ch 9, pp 222–223.

    • 18 HCD 4 November 1951; quoted in Jenkins R (1994) ‘Churchill: the government of 1951–1955’ at p 497, in Blake R and Louis W (eds) Churchill.

    • 19 Hampson op cit ch 10; Buxton R (1971) Local government ch 5.

    • 20 See especially Griffith J (1966) Central departments and local authorities ch 1.

    • 21 See Sharpe J (1970) ‘Theories and value of local government’ Political Studies 153.

    • 22 Local Government Act 1958. See Jennings (1960) op cit pp 88–94.

    • 23 Crossman’s Diaries suggest that his zeal for ‘modernisation’ in this process did not always override his concern with party political electoral advantage: op cit p 201.

    • 24 For a helpful explanation of the eventual structure see Hampson op cit ch 2.

    • 25 See Burton I and Drewry G (1972) ‘Public legislation a survey of the session 1971–1972’ Parliamentary Affairs 145.

    • 26 DoE (1971) Local government in England p 6.

    • 27 Loughlin (1994) op cit.

    • 28 (1960) op cit pp 184–186.

    • 29 [1898] 2 QB 91.

    • 30 In effect a piece of delegated legislation whose geographical reach was confined within the council’s boundaries.

    • 31 [1898] 2 QB 91 at 99.

    • 32 [1948] 1 KB 223.

    • 33 [1925] AC 578, HL. For background to the case see Keith-Lucas B (1962) ‘Poplarism’ Public Law 52; Jones G (1973) ‘Herbert Morrison and Poplarism’ Public Law 11.

    • 34 Laski H (1926) ‘Judicial review of social policy in England’ Harvard LR 832 at p 844. See Fennel P (1986) ‘Roberts v Hopwood: the rule against socialism’ JLS 401.

    • 35 See Branson N (1979) Poplarism.

    • 36 Board of Guardians (Default) Act 1926; Audit (Local Authorities) Act 1927. For comment see Keith-Lucas op cit.

    • 37 For example Lord Sumner’s comment in Roberts that the limits of a council’s discretion was reached in such matters as deciding ‘the necessity for a urinal, and the choice of its position’; [1925] AC 578 at 605, HL.

    • 38 See Bowley M (1985) Housing and the state 1919–1945 ch 1; Merret S (1979) State housing in Britain; Malpass P and Murie A (1987) Housing policy and practice (1987) ch 2; Forrest R and Murie A (1988) Selling the welfare state ch 2.

    • 39 Although in the 1960s central government ‘encouraged’ councils to build particular types of dwelling by variations in the financial support offered; see Cullingworth J (1979) Essays on housing policy ch 1; Malpass and Murie op cit pp 78–81.

    • 40 See Loughlin (1985a) ‘The restructuring of central–local government legal relations’ Local Government Studies 59; Hampson op cit ch 9; and Rhodes R (1986) The national world of local government.

    • 41 [1949] AC 56.

    • 42 Ibid, at 66.

    • 43 [1950] Ch 380. See also Summerfield v Hampstead Borough Council [1957] 1 WLR 167; Luby v Newcastle-under-Lyme Corpn [1965] 1 QB 214, CA.

    • 44 [1950] Ch 380 at 392.

    • 45 Which the courts proved reluctant to question; see Asher v Secretary of State for the Environment [1974] Ch 208, CA.

    • 46 Mitchell A (1974) ‘Clay Cross’ 45 Political Quarterly 165–175; Sklair L (1975) ‘The struggle against the Housing Finance Act’, in Miliband R and Smith J (eds) Socialist Register.

    • 47 See Loughlin (1985a) op cit.

    • 48 Quoted in Bogdanor V (1976) ‘Freedom in education’ Political Quarterly 149, 156.

    • 49 Layfield/DoE (1976) Report of the Committee of Enquiry into local government finance, p 300 (Cmnd 6453).

    • 50 See para 2.3.

    • 51 See particularly Hall S (1983) ‘The great moving right show’, in Hall and Jacques op cit.

    • 52 See Butler D, Adonis A, and Travers T (1994) Failure in British government: the politics of the poll tax, p 29.

    • 53 For detailed figures see the first edition of this book at pp 428–429.

    • 54 See Jenkins J (1987) ‘The green sheep in Colonel Gadaffi Drive’ New Society, 9 January 1987.

    • 55 (1985) The Times, 11 May, CA.

    • 56 [1986] AC 240, CA.

    • 57 See Jackman R (1984) ‘The Rates Bill: a measure of desperation’ Political Quarterly 161.

    • 58 See Loughlin (1994) op cit at n 49.

    • 59 See Welfare op cit.

    • 60 Butler, Adonis, and Travers op cit p 65.

    • 61 R v Secretary of State for the Environment, ex p Birmingham City Council (15 April 1986, unreported); R v Secretary of State for the Environment, ex p Greenwich London Borough Council (17 December 1986, unreported). Neither case is reported, but both are noted in Loughlin (1994) op cit.

    • 62 See ‘VII. Retrospective law-making’, ch 3, pp 69–72.

    • 63 Loughlin (1985) op cit; (1994) op cit.

    • 64 The term is Martin Loughlin’s; see (1985) op cit.

    • 65 See Hampson op cit, pp 23–26.

    • 66 HCD 17 December 1968 cc 1247–1248.

    • 67 [1983] 1 AC 768.

    • 68 See Griffith J (1985) ‘Judicial decision-making in public law’ Public Law 564; Pannick D (1984) ‘The Law Lords and the needs of contemporary society’ Political Quarterly 318; McAuslan P (1983) ‘Administrative law, collective consumption and judicial policy’ MLR 1.

    • 69 Bridges L et al (1987) Legality and local politics.

    • 70 Butler, Adonis, and Travers op cit pp 37–39.

    • 71 (1983) (Cmnd 9063).

    • 72 For an analysis of the motives behind abolition see O’Leary B (1987) ‘Why was the GLC abolished?’ International Journal of Urban and Regional Research 192; (1987) ‘British farce, French drama and tales of two cities’ Public Administration 369.

    • 73 See Welfare op cit; Shell (1992) op cit pp 168–173.

    • 74 30 June 1984; quoted in Shell (1992) op cit p 69.

    • 75 Jackman op cit p 61.

    • 76 Cited in Laffin op cit, n 6, p 194.

    • 77 See eg Cullingworth op cit pp 38–47; Merret op cit, ch 8.

    • 78 Ascher K (1983) ‘The politics of administrative opposition—council house sales and the right to buy’ Local Government Studies 12.

    • 79 [1982] 1 All ER 737 at 748, per Kerr LJ. For an analysis of events see Murie and Maplass op cit pp 233–240.

    • 80 See Loveland I (1992) ‘Square pegs, round holes: the “right” to council housing in the post-war era’ Journal of Law and Society 339.

    • 81 Woodward R (1991) ‘Mobilising opposition: the campaign against housing action trusts in Tower Hamlets’ Housing Studies 44.

    • 82 Loughlin (1985) op cit p 104; Malpass and Murie op cit pp 110–113.

    • 83 Butler, Adonis, and Travers op cit, p 22.

    • 84 DoE (1983) Rates, p 14 (Cmnd 9008).

    • 85 See Himsworth (1991) op cit.

    • 86 Butler, Adonis, and Travers op cit pp 118–121.

    • 87 See R v Secretary of State for the Environment, ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521, sub nom Hammersmith and Fulham London Borough Council v Secretary of State for the Environment [1990] 3 All ER 589; and more generally Himsworth op cit.

    • 88 See Nally S and Dear J (1990) ‘No surrender’ Municipal Journal, 12–18 October.

    • 89 Institute of Fiscal Studies (1990) Local government finance: the 1990 reforms.

    • 90 Audit Commission (1990) The administration of the community charge.

    • 91 At 34.

    • 92 Ibid.

    • 93 For a suggestion that there has been a shift in degree, if not quality, see Vincent-Jones P (2000) ‘Central-local relations under the Local Government Act 1999’ MLR 84.

    • 94 Ibid.

    • 95 The pamphlet was published by the Institute for Public Policy Research (IPPR).

    • 96 Leading the way op cit p 6.

    • 97 Ibid, at 22.

    • 98 See Wilson D (2001) ‘Local government: balancing diversity and uniformity’ Parliamentary Affairs 289.

    • 99 The Times, 18 February 2002.

    • 100 Department of the Environment, Transport and the Regions (1998) A Mayor and Assembly for London, para 1.6.

    • 101 Greater London Authority Act 1999 ss 59–60.

    • 102 Policing powers are among the more important of the GLA’s functions, if only because the Police Authority for London was previously the Home Secretary: see Part VI of the Act.

    • 103 Department of the Environment, Transport and the Regions op cit para 6.7 (hereafter cited as DETR op cit).

    • 104 Greater London Authority Act 1999 ss 82–84.

    • 105 Greater London Authority Act 1999 ss 3–4, 17, and Sch 2.

    • 106 <http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition_programme_for_government.pdf> at p 11.

    • 107 See Bogdanor’s analysis in (2009) The new British constitution ch 10.

    • 108 See generally on this point Loveland I (1999) ‘Local authorities’ in Blackburn R and Plant R (eds) Constitutional reform.