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Government in its activities™ (HC Deb vol 188, col 401, 21 March 1991). In
a consultation paper (Local Government Review: The Structure of Local Govern-
ment in England (1991)), the Government found the two-tier system of county
and district councils to be unsatisfactory in several respects. Although it was not
proposed to establish a uniform pattern of authorities throughout England, it
was contemplated that single-tier government would be the norm. Similar
consultation produced a like result in Scotland.
The Local Government Act 1992 established a Local Government
Commission for England with the task of reviewing local government areas as
directed by the Secretary of State and recommending appropriate boundaries,
electoral changes and administrative structures for each such area. The Act
empowered the Secretary of State to give e¬ect to the Commission™s recommen-
dations, in his discretion, by laying orders before Parliament, to be subject in
some cases (eg, if e¬ecting a structural change) to the a¬rmative resolution of
each House. (The machinery for electoral reviews has since been changed, and
the functions of the Local Government Commission have been transferred to the
Electoral Commission and the Boundary Committee for England established by
the Political Parties, Elections and Referendums Act 2000: see below, p 497.)
The Commission completed its review at the beginning of 1995; its recom-
mendations for ¬fty new all-purpose authorities, while retaining a two-tier
structure in most counties, fell far short of the Government™s preference for an
England of predominantly single-tier local government. The Secretary of State™s
insistence on a radical reconsideration by the Commission provoked the resig-
nation of its chairman. The review was resumed under his successor, the
Government requiring further consideration to be given to a number of areas,
and the process was completed in 1996. In the result forty-six new unitary local
authorities were established in England, but the two-tier structure of county and
district councils remains in place in most of the non-metropolitan counties. This
new ˜hybrid™ structure of local government lacks a logical foundation and it has
been doubted whether it will prove a durable solution. The claimed merits of
250 British Government and the Constitution


a general adoption of unitary local government “ more e¬ective management,
planning and service delivery “ are much debated, but the Government has no
present intention of replacing existing two-tier arrangements.
In 1998 the Labour Government published new proposals for the govern-
ment of London, ˜to ¬ll the democratic de¬cit created by the abolition of the
GLC in 1986, to provide strong strategic leadership and restore accountability™
(A Mayor and Assembly for London, Cm 3897/1998). The Government™s pro-
posals were approved in a referendum held in Greater London on 7 May 1998
and were implemented by the Greater London Authority Act 1999, establishing
a Greater London Authority (GLA), a new type of city government in the
United Kingdom, consisting of a Mayor of London and a London Assembly,
each elected for a term of four years. The Mayor is elected, if there are three or
more candidates, by the Supplementary Vote system in which each voter may
express a ¬rst and second preference. A candidate who wins more than half the
¬rst-preference votes is elected as Mayor; otherwise all but the two candidates
with the most votes are eliminated and the second-preference votes of the
eliminated candidates are allocated between the two who remain in the contest:
the candidate who then has the most votes is elected. (If there are only two
candidates the election is by the ˜¬rst past the post™ system.) The twenty-¬ve
London Assembly members are elected by the Additional Member system, each
voter having a constituency vote and a London vote. Fourteen ˜constituency
members™ are elected by ˜¬rst past the post™ in single-member constituencies
and eleven ˜London members™ by the party list system (or as independents) on
a London-wide vote.
The GLA has responsibility, and a general power, to promote economic
development and wealth creation, social development and the improvement of
the environment in Greater London. London borough councils continue to
have responsibility for a wide range of local services (housing, education, social
services, local roads and tra¬c, sport and recreation, etc). Strategic policies are
formulated by the Mayor in published ˜strategies™ relating to such matters as
transport, spatial development (land use planning), biodiversity, air quality and
culture. The Mayor must consult and is accountable to the Assembly, which
scrutinises the Mayor™s performance of his or her functions and approves the
Mayor™s budget. The Greater London Authority Act also established four ˜func-
tional bodies™, answerable to the GLA. These are the London Development
Agency, Transport for London, the Metropolitan Police Authority and the
London Fire and Emergency Planning Authority. (See generally, B Pimlott and
N Rao, Governing London (2002).)
Local authorities in English towns and cities were given the option by the
Local Government Act 2000 of having a directly elected mayor, if this pattern of
government should be approved in a local referendum. In the result a mayoral
system of government was chosen by only eleven local electorates. This scheme
does not extend to Scotland. In 2006 the Government suggested removing the
251 Devolution and the structure of the UK


requirement for a referendum (see its White Paper, Strong and Prosperous
Communities, Cm 6939/2006).
The structure of local government in Scotland and Wales was reorganised in
1994 by legislation instituting single-tier local government in the two countries.
The Local Government (Scotland) Act 1994 established thirty-two all-purpose
authorities for Scotland “ fewer elected councils and larger areas than before.
Responsibility for local government in Scotland (including questions of struc-
ture) was devolved to the Scottish Parliament by the Scotland Act 1998, but no
structural reorganisation is yet contemplated. The Local Governance (Scotland)
Act 2004 introduced the single transferable vote system for local government
elections with e¬ect from 2007. (See further Himsworth, ˜Local government in
Scotland™, in A McHarg and T Mullen (eds), Public Law in Scotland (2006), ch 8
and see further below.)
The Local Government (Wales) Act 1994 replaced the existing eight county
and thirty-seven district councils in Wales with twenty-two unitary authorities.
(It was observed that the e¬ect of the Act would be to reduce the number of
elected councillors in Wales to some 1,250, while the number of persons
appointed by the Secretary of State to public bodies in Wales had reached 1,450
(Lord Prys-Davies, HL Deb vol 550, col 1276, 14 December 1993).) The devo-
lution settlement for Wales left responsibility for the structure and boundaries
of local government with the Secretary of State, and the Welsh Assembly was
not empowered to remove functions from local authorities. The Assembly was
required by the Government of Wales Act 1998, section 113 to establish an advi-
sory Partnership Council for Wales consisting of Assembly members and
members of local authorities. It had also to adopt a scheme for sustaining and
promoting local government in Wales. (See further Local Voices: Modernising
Local Government in Wales, Cm 4028/1998, and R Rawlings, Delineating Wales
(2003), ch 10.)
Local government in Northern Ireland was reformed by the Local
Government (Northern Ireland) Act 1972, following the recommendations of
a review body chaired by Sir Patrick Macrory (Cmd 546/1970). The Act estab-
lished a lower tier of twenty-six district councils with very limited functions,
while many local government services were to be discharged for the whole
province by the Parliament and Government of Northern Ireland as the upper
tier. The imposition of direct rule in 1972 resulted in the so-called ˜Macrory
gap™, with upper-tier local government functions being discharged by civil ser-
vants and appointed boards instead of elected bodies. A Review of Public
Administration was undertaken by the Northern Ireland Executive in 2002 and
completed in November 2005, after the suspension of devolution, by ministers
in the Northern Ireland O¬ce. (See Better Government for Northern Ireland
(2006), www.rpani.gov.uk.) Decisions were taken in the Review to reduce the
number of local authorities from twenty-six to seven, covering larger areas
and with substantially increased responsibilities and powers, which are to
252 British Government and the Constitution


be transferred from central government departments and non-departmental
public bodies (and with a new general power to take action to improve the ˜well-
being™ of the local community).
Local government elections in Northern Ireland are held under the single
transferable vote system of proportional representation. (District council elec-
tions and the franchise are an excepted matter, not within the competence of
the Assembly.)


(b) Functions of local authorities
Martin Loughlin has identi¬ed ˜multi-functionality™ as one of the basic
characteristics ˜of critical importance in shaping the institution of local gov-
ernment™ (see above). In Legality and Locality: the Role of Law in Central-Local
Government Relations (1996), pp 80“1, he instances the transfer of functions,
in the late nineteenth and early twentieth century, from single-purpose
local boards (eg, for education and for poor relief) to local authorities, as
exemplifying the idea ˜that the local inhabitants might look to a single insti-
tution for the basic services which government should provide at the level
of the locality™. During this period local authorities steadily acquired addi-
tional functions, such that their total spending came to be roughly a quarter
of all public expenditure. Loughlin observes, however, that since the 1930s
˜local authorities have been stripped of various responsibilities, including
trunk roads in 1936, electricity in 1947, gas in 1948, water and sewerage in
1974, public assistance between 1934 and 1948, hospitals in 1946 and the
remaining local health services in 1974™ (Local Government in the Modern State
(1986), p 6).
The removal of functions from local government was intensi¬ed after 1979
under the auspices of a Conservative Government committed to a fundamen-
tal transformation of local authorities, to become, in the words of a Secretary
of State for the Environment, ˜enablers and regulators rather than providers of
services™ (Municipal Review, April 1989, p 9; see also Competing for Quality, Cm
1730/1991, p 22). In the 1980s and 1990s a tide of legislation curtailed local
government responsibilities in respect of education, housing, public transport
and police services. While, on the other hand, local authorities acquired some
new functions, notably in assuming community care responsibilities from
the Department of Social Security (National Health Service and Community
Care Act 1990), in general there was a dispersal of local functions, resulting in
˜an institutionally di¬erentiated structure of local governance™ (M Loughlin,
Legality and Locality (1996), p 108).
The loss of functions by local government was a matter of concern to the
House of Lords Select Committee on Relations between Central and Local
Government. It noted the view of the local authority associations that local
authorities had become mere agents of central policy, ˜at the expense of an inde-
pendent role in their own communities™.
253 Devolution and the structure of the UK


Report of the Select Committee on Relations between Central
and Local Government, vol I, HL 97 of 1995“96, paras 6.2“6.3
For a long time, and under different governments, power in this country has been moving
away from local authorities, either to central government or to appointed or elected bodies,
often not involving local authorities, some of which operate at a local level, and which are
mostly single-purpose bodies. We do not believe this movement to be necessarily due to
any over-arching central philosophy aimed at attacking local government itself. Central
government has on occasions wished to promote national standards, to correct perceived
mismanagement or overspending by local authorities, or to deal with those which have over-
stepped their place. It has found that the easiest way to achieve these aims is to take powers
away from local government.
There have been many such changes which, while individually explicable, have, taken
together, resulted in a significant if incremental shift in the balance of power to the centre.


The fragmentation of local responsibilities had resulted in the loss of an overall
view of the needs of the local area and a blurring of accountability (see paras
4.46 and 6.9 of the report). The committee concluded that if nothing was done
to strengthen the position of local government, there was a risk of ˜a continued
attrition of powers and responsibilities™ from local authorities ˜until nothing
meaningful is left™ (para 6.30).
Local authorities nevertheless retain a wide range of functions, relating to
such matters as consumer protection, culture and entertainment, education,
environmental health, ¬re, highways and public transport, housing, licensing,
personal social services, planning and development control. Multi-functional
local authorities are the primary agencies in a system of local governance which
includes a large number of appointed, special-purpose local bodies (˜quangos™).
A House of Commons select committee numbered local public bodies at over
5,000, including health authorities, National Health Service trusts, city tech-
nology colleges, foundation schools, Learning and Skills Councils, registered
social landlords, police authorities, etc. (See Fifth Report, Public Administration
Committee, HC 367 of 2000“01, paras 23“7.)

David Wilson in Gerry Stoker and David Wilson (eds), British Local
Government into the 21st Century (2004), pp 10“11
At the sub-national level in Britain since the 1980s there has been a shift from local gov-
ernment to local governance, in which elected local authorities have become just one of a
number of bodies ˜governing™ at local level. The advent of appointed boards, local quangos
and partnership organizations means that elected members are less central to the delivery
of services than in the past. Local government is frequently a collaborator in multi-level part-
nerships with central government departments, Government Offices for the Regions (GOs),
Regional Development Agencies (RDAs), private-sector and voluntary organizations. Many of
254 British Government and the Constitution


the new bodies inhabiting the world of local governance are appointed directly or indirectly
by central government, performing functions and providing services that were, until quite
recently, provided mainly or exclusively by elected local authorities. They add greatly to the
complexity of sub-central government as well as increasing the influence of their respective
˜sponsoring™ departments at the local level. They are in a sense agents for the centre


(i) Powers
Local authorities owe their existence to statute and their powers are conferred
on them (and can be taken away) by Parliament. All local government expen-
diture requires statutory authorisation.
Many statutes give powers to local authorities to enable them to carry out
their functions. If an English local authority needs additional powers, for
example, to provide some new local facility or service “ say to operate a munic-
ipal caravan park “ it may promote a private bill in Parliament to obtain the nec-
essary power. (Authority to do this is given by the Local Government Act 1972,
section 239.) This is a rather troublesome and costly process, and sometimes the
required power can be more easily obtained from the Secretary of State, who is
authorised by various statutes to make orders, subject to a special parliamen-
tary procedure, conferring powers on local authorities: the procedure allows
for approval, annulment or amendment of the order by Parliament. (See the
Statutory Orders (Special Procedure) Act 1945, as amended. See also the
Transport and Works Act 1992, making provision for many matters previously
dealt with by the private bill procedure.)
The statutory powers of local authorities are marginally extended by section
111 of the Local Government Act 1972, which provides that a local authority
˜shall have power to do any thing . . . which is calculated to facilitate, or is con-
ducive or incidental to, the discharge of any of their functions™. As to the limits
(some would say the emasculation) of this power see the controversial decision
of the House of Lords in Hazell v Hammersmith and Fulham London Borough
Council [1992] 2 AC 1 (for a detailed critique of which, see M Loughlin, Legality
and Locality (1996), ch 6; see also R v Richmond upon Thames London Borough
Council, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48; Cr©dit
Suisse v Allerdale Borough Council [1997] QB 306; Akumah v Hackney LBC
[2005] UKHL 17, [2005] 2 All ER 148).
Local authorities are constrained in taking action for the bene¬t of their
communities by the ultra vires principle: they can act only within the limits of
the powers conferred upon them. The House of Lords Select Committee on
Relations between Central and Local Government received evidence that vires
was ˜a “straitjacket” on the ability of local authorities to act as representatives
of their local communities™ and to innovate (HL 97-I of 1995“96, para 3.2).
One of the committee™s recommendations was that local authorities should be
given a new general power ˜to act in the interests of the local community™, but
this was not accepted in the Conservative Government™s response (Cm
255 Devolution and the structure of the UK


3464/1996). In 1997 the new Labour Government signed the European Charter
of Local Self-Government which a¬rms the right of local authorities ˜to regu-
late and manage a substantial share of public a¬airs under their own responsi-
bility and in the interests of the local population™ (Art 3(1)). A proposal made
in the Government™s White Paper, Modern Local Government (Cm 4014/1998),
was enacted in the Local Government Act 2000, section 2, which empowers

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