. 52
( 155 .)


et al, ˜The frontiers of legal analysis: reframing the transition in Northern
Ireland™ (2003) 66 MLR 317; McGarry and O™Leary, ˜Stabilising Northern
Ireland™s agreement™ (2004) 75 Political Quarterly 213; McCrudden in J Jowell
and D Oliver (eds), The Changing Constitution (5th edn 2004), ch 8; Anthony
and Morison in R Hazell and R Rawlings (eds), Devolution, Law Making and the
Constitution (2005), ch 5.)

(e) Devolution: conclusions
Devolution in Britain, as it has been experienced since 1998, ˜is variable, an
untidy, asymmetrical constitutional architecture™ (O™Neill, ˜Great Britain: from
Dicey to devolution™ (2000) 53 Parliamentary A¬airs 69, 78). Similarly Robert
Hazell, in The State and the Nations (2000), p 269, remarks: ˜Asymmetry runs
through every clause and schedule of the devolution legislation, from the fun-
damentals of powers and functions down to the niceties of nomenclature™.
Hazell goes on to stress that these variations are not accidental:

They are deliberate differences chosen to emphasise the difference in style and substance
between the three devolved assemblies, and in particular between each of the devolved
assemblies and their parent body at Westminster.
244 British Government and the Constitution

The di¬erent constitutional structures were devised so as to match the particu-
lar historical and political circumstances of each country. This is not to say that
the match is in every respect apposite, and it is evident that we cannot think of
the settlement as being in each case ¬xed and permanent. This is, indeed,
acknowledged in provisions of the devolution statutes which allow for future
extensions of the areas of competence of the devolved institutions.
The former Secretary of State for Wales, Mr Ron Davies, in insisting that
devolution was ˜a process, not an event™, highlighted a feature not only of the
settlement for Wales but of the whole devolution project. It is in the arena of
politics that devolved government in the three countries will be tested and
adjusted; and as the various political parties have di¬ering perspectives of
devolution and envisage di¬erent outcomes, the course of constitutional devel-
opment is not easily predicted. It is in Northern Ireland, where political con¬‚ict
is sharpest and expectations of what may be gained from devolution diverge
most radically, that the settlement is least stable; and it is there that most
is demanded in political imagination and ¬‚exibility if the experiment is to
succeed. Even in Scotland and Wales, where the devolution of powers seems
realistically, although not legally, irreversible, there are elements of uncertainty
and transience. In Wales, for instance, the demand has intensi¬ed for powers of
primary legislation to be devolved. A Scottish administration that encounters
a United Kingdom Government of a di¬erent political complexion may strain
at the limits on its powers and the carefully devised arrangements for coopera-
tion may break down.
Although it is clear that devolution has not resulted in a federal constitution
of the United Kingdom, it has been remarked that ˜in political terms, these new
settlements are signi¬cantly closer to the federalist end of the continuum than
their predecessors in the Northern Ireland Act 1920 and the abortive Scotland
Act 1978™ (Walker, ˜Beyond the unitary conception of the United Kingdom con-
stitution?™ [2000] PL 384, 396). This author goes on to say (at p 397) that:

the British state has come closer than ever before to conceding that its retention of legisla-
tive omnicompetence in the context of a devolution process is a matter of legal form rather
than political substance; in other words, while ritual deference continues to be paid to the
legal theory of the unitary state, the developing culture of negotiation and balanced settle-
ment reflects a rather different political understanding.

3 Local government
Every modern state, unless of minute size, needs a system of local administra-
tion. Even if all important decisions were taken at the centre there would need
to be local agencies to implement them, issuing commands and services to local
populations, and some subsidiary decision-making would have to be delegated
to these agencies. Of course, there are many possible kinds of arrangement for
local administration. In the United Kingdom, part of this task is performed by
245 Devolution and the structure of the UK

local branches of central government, such as the outposts of HM Revenue and
Customs and of the Department of Work and Pensions, as well as by a host of
unelected local public spending bodies (local ˜quangos™); but the most wide-
ranging responsibilities fall to elected local government.
It would be generally agreed that local government in the United Kingdom
has the following main objectives.
• to reduce the load on the centre; central government in the modern state
would be greatly overloaded if the burden of administration were not shared
with local institutions;
• to provide opportunities for democratic choice and popular participation in
the government of local areas; in this way government can be made more
accountable to local communities, and ordinary citizens can take a fuller part
in the democratic process and in public life;
• to achieve more responsive and rational decision-making through institu-
tions which are well informed about local conditions and aware of local needs
and demands; speci¬c policies can be developed to match local circum-
stances, and national policies can be adapted to the needs of di¬erent areas
and communities.
The Redcli¬e-Maud Commission, in its report on the structure of local gov-
ernment in England, gave some attention to the purposes of local government.

Report of the Royal Commission on Local Government in England
(Redcliffe-Maud Report) vol 1, Cmnd 4040/1969

28. Our terms of reference . . . require us to bear in mind the need to sustain a viable
system of local democracy: that is, a system under which government by the people is a
reality. This we take to be of importance at least equal to the importance of securing effi-
ciency in the provision of services. Local government is not to be seen merely as a provider
of services. If that were all, it would be right to consider whether some of the services
could not be more efficiently provided by other means. The importance of local govern-
ment lies in the fact that it is the means by which people can provide services for them-
selves; can take an active and constructive part in the business of government; and can
decide for themselves, within the limits of what national policies and local resources allow,
what kind of services they want and what kind of environment they prefer. More than this,
through their local representatives people throughout the country can, and in practice do,
build up the policies which national government adopts “ by focussing attention on local
problems, by their various ideas of what government should seek to do, by local initiatives
and local reactions. Many of the powers and responsibilities which local authorities now
possess, many of the methods now in general use, owe their existence to pioneering by
individual local authorities. Local government . . . being, by its nature, in closer touch than
Parliament or Ministers can be with local conditions, local needs, local opinions, is an essen-
tial part of the fabric of democratic government. Central government tends, by its nature,
to be bureaucratic. It is only by the combination of local representative institutions with
246 British Government and the Constitution

the central institutions of Parliament, Ministers and Departments, that a genuine national
democracy can be sustained.
29. We recognise that some services are best provided by the national government: where
the provision is or ought to be standardised throughout the country, or where the decisions
involved can be taken only at the national level, or where a service requires an exceptional
degree of technical expertise and allows little scope for local choice. Even here, however, there
is a role for local government in assessing the impact of national policies on places and on
people, and in bringing pressure to bear on the national government for changes in policy or
in administration, or for particular decisions. And wherever local choice, local opinion and inti-
mate knowledge of the effects of government action or inaction are important, a service is
best provided by local government, however much it may have to be influenced by national
decisions about the level of service to be provided and the order of priorities to be observed.
30. We conclude then that the purpose of local government is to provide a democratic
means both of focussing national attention on local problems affecting the safety, health and
well-being of the people, and of discharging, in relation to these things, all the responsibil-
ities of government which can be discharged at a level below that of the national govern-
ment. But in discharging these responsibilities local government must, of course, act in
agreement with the national government when national interests are involved.

The Widdicombe Committee, in its report on The Conduct of Local Authority
Business (Cmnd 9797/1986) saw the value of local government as stemming
from its attributes of participation (by the local community) and responsiveness
(to local needs) and, as well, from that of pluralism, or ˜the spreading of power
within the state™ (paras 3.13“13.17).
In a balanced assessment of the claimed bene¬ts of local government, Anne
Phillips concludes that its strongest justi¬cation is to be found in its role in
˜enhancing and developing democracy™, in particular through providing ˜the
most accessible avenue for political participation™. She argues for the develop-
ment of procedures for the ˜deepening™ of local democracy, so that ˜the locality
can play a crucial role in extending discussion and deliberation and debate™
(˜Why does local democracy matter?™, in L Pratchett and D Wilson (eds), Local
Democracy and Local Government (1996).)
Martin Loughlin has identi¬ed four ˜key characteristics™ of the system of local
government in the United Kingdom as follows.

Martin Loughlin, ˜Restructuring of Central-Local Government
Relations™, in Jeffrey Jowell and Dawn Oliver (eds), The Changing
Constitution (4th edn 2000), pp 139“40
The first [characteristic] is that of multifunctionality, that a single body assumes responsibil-
ity for a number of different functions. If tasks were allocated to local bodies simply by ref-
erence to a technical conception of efficiency then we might expect central government
to establish single-purpose agencies to undertake defined tasks. The standard pattern of
247 Devolution and the structure of the UK

allocating tasks to multifunctional councils may thus be taken to indicate that local govern-
ment does not exist solely for its ability to provide certain services efficiently. The second
characteristic is that of discretion. Local councils are not generally subject to specific duties.
Rather they are vested with discretionary powers which enable them to tailor activities or
services to local needs. This means that local authorities are free to decide on the precise
pattern of the services which they deliver and even to redefine the nature of the service they
provide. Notwithstanding the ultra vires doctrine, they are given the capacity to innovate.
The third characteristic of our local government tradition is that of taxation. Local councils
are vested with the power of taxation, which gives them a degree of financial independence
which is unique amongst the subordinate institutions of government. The final characteris-
tic is that of representation. Local councils in England are the only governmental institutions
outside Parliament which are subject to direct periodic election.
These four basic characteristics of local government “ multifunctionality, discretion, taxa-
tion, and representation “ should be viewed as mutually reinforcing characteristics. As mul-
tifunctional bodies with broad discretionary powers, local authorities are vested with the
capacity to innovate and determine local priorities. As elected bodies they have legitimacy
to exercise broad discretionary powers, most crucially the power to tax. They are, in short,
complex organizations equipped with a capacity for effective governmental action and
vested with the political legitimacy to authorize such action. These characteristics reveal the
values on which our tradition of local government is founded.

(a) Structure of local government
Until well into the nineteenth century the local government of England and
Wales was a Byzantine structure of borough corporations, parishes, justices of
the peace and ad hoc authorities of various kinds “ ˜a chaos of institutions, areas
and rates™ (P Richards, The Reformed Local Government System (4th edn 1980),
p 15). The Local Government Acts of 1888 and 1894 created a more rational
system, which was to endure in essentials until the reorganisation e¬ected by
the Local Government Act 1972.
The structure of local government established by the Acts of 1888 and 1894
was based on democratically elected local authorities. County councils were the
upper-tier authorities in the counties; below them were rural district councils
and, for the smaller towns, urban district councils or non-county borough
councils. Within the rural districts some minor functions were retained by
parishes. Larger towns were separately administered as ˜county boroughs™ by all-
purpose authorities independent of the counties. London was given its own
county government “ the London County Council (LCC) “ in 1888, and the
London Government Act 1899 created twenty-eight metropolitan borough
councils within the area of the LCC. (The City of London kept its own ancient
The system created by these enactments assumed a separation between town
and country which was to become ever more unreal. Suburban development,
248 British Government and the Constitution

population growth and mobility, and the increasing scale of local government
activity (including such new services as education, health, housing, environ-
mental planning and social welfare) demanded a radical reorganisation of
the structure and working of local government. The groundwork for reform
was done by a series of Royal Commissions, on Local Government in Greater
London (Herbert Report, Cmnd 1164/1960), on Local Government in England
(Redcli¬e-Maud Report, Cmnd 4040/1969) and on Local Government in
Scotland (Wheatley Report, Cmnd 4150/1969).
The Herbert Commission™s proposals were implemented by the London
Government Act 1963. The LCC was replaced by the Greater London Council
(GLC), with jurisdiction extending over a much larger built-up area, and
responsibilities in such matters as strategic planning, transport, main roads, ¬re
protection, etc. The bulk of local services, including education, local planning,
housing, health and social welfare, were to be discharged by thirty-two London
borough councils. The Redcli¬e-Maud Commission™s proposals for the rest of
England were criticised on their merits and generated political contention. In
the result the Local Government Act 1972 departed in some important respects
from the Redcli¬e-Maud scheme, in particular in adopting a two-tier structure
of local government instead of the Redcli¬e-Maud proposal of all-purpose
unitary authorities. The Act reorganised local government in both England and
Wales, replacing the 1,391 existing counties, boroughs and urban and rural
district councils with 422 new authorities. Outside the metropolitan areas,
47 county councils were given a wide range of functions, including education,
personal social services, strategic planning, roads, transport policy and police.
The 333 district councils were to provide the remaining local government ser-
vices (public health, housing, local planning, etc). Parish councils (community
councils or meetings in Wales) were to continue, with minor functions in their
local areas. In Scotland there was, from 1975, a two-tier system of nine regional
councils (responsible for education, social work, strategic planning and
transport) and ¬fty-six district councils (responsible for local planning and
If these proposals and reforms were directed to increasing the e¬ciency
of local government, the scheme as implemented, and the reduction in the
number of local authorities, may have furthered a movement towards greater
centralisation of powers. Martin Loughlin, for instance, has suggested that ˜the
reforms which were enacted were not part of a programme of creating func-
tionally e¬ective units through which the trend towards centralisation could
be reversed . . . but part of the centralisation process itself ™ (Local Government
in the Modern State (1986), p 9). The process of centralisation continued after
the return of Conservative government in 1979. The new Government was
resolved to abolish the GLC and the metropolitan councils as ˜a wasteful and
unnecessary tier of government™ (Conservative Party manifesto, 1983. They also
had the demerit of being strongholds of opposition to the Government™s poli-
cies.) Their dissolution was accomplished by the Local Government Act 1985.
249 Devolution and the structure of the UK

The functions of the extinguished councils were assumed respectively by
London borough or metropolitan district councils, or by new statutory author-
ities or quasi-governmental organisations, and were carried out through a
variety of fragmented and untidy arrangements “ all within a framework of
ministerial powers of guidance and control. A strategic overview for London
was no longer maintained by an elected authority but by a ministerial sub-com-
mittee on London and civil servants in central government departments.
The reformed local government system of 1972“73 was not universally
acclaimed. It had endured for less than twenty years when the Government
embarked on a further reorganisation of local government in England, Scotland
and Wales. In announcing the review to be undertaken for England, the
Secretary of State for the Environment remarked that ˜local government cannot
be a fully independent power in the land. It traditionally derives its power
from Parliament, and it must complement and not compete with central


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( 155 .)