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ment needs to raise a substantial percentage of its own resources. If local government is,
however, seen as a political institution, with a strong community leadership role, which
261 Devolution and the structure of the UK


should allow for a degree of local choice and diversity, then it needs the authority and the
means to act, including adequate financial resources, and a reasonable degree of autonomy
and discretion in relation to local taxes.


Statutes provide central government with a range of administrative controls
of local government action. Some acts of local authorities are subject to minis-
terial approval “ for example, local development schemes, compulsory purchase
orders and sales of school playing ¬elds. Local authorities may be required by
statute to ˜have regard™ to guidance issued by ministers (eg, the code of guidance
on homelessness issued under section 182 of the Housing Act 1996). Some
statutes empower ministers to give directions to local authorities “ examples can
be found in the Local Government, Planning and Land Act 1980, section 98 (the
Secretary of State may require an authority to dispose of land which in his
opinion is not being used for the authority™s purposes), and in the School
Standards and Framework Act 1998, section 19, as amended (direction to a local
education authority to close a failing school). There are also various statutory
˜default powers™ by which a minister may, for instance, issue directions to a local
authority which has failed to perform its duty, or may transfer its responsibili-
ties to another authority, or assume them himself. (See eg, the extensive powers
of intervention conferred on the Secretary of State by the Local Government Act
1999, section 15.) Default powers are a radical expedient and their use may raise
in critical and dramatic form the constitutional issue of the respective roles
of central and local government. See in this connection Secretary of State for
Education and Science v Tameside Metropolitan Borough Council [1977] AC
1014; Bull, ˜Tameside Revisited™ (1987) 50 MLR 307; and R v Secretary of State
for the Environment, ex p Norwich City Council [1982] QB 808.
Another means available to central government for regulating the conduct of
local authorities is the making of regulations, where this is authorised by statute.
For instance, the placing by local authorities (as well as by other public bodies)
of contracts for public works or for the purchase of supplies or services is gov-
erned in detail by regulations made under section 2(2) of the European
Communities Act 1972, implementing Community Directives. Ministerial reg-
ulations or orders apply to many local government services, such as education,
housing and planning.
While the relationship between central and local government has tradition-
ally and in general been one of cooperation or partnership, con¬‚icts of interest
naturally arise, especially when di¬erent parties rule at the centre and in the
locality. A local authority may pursue a set of policies that are discordant with
those of the centre, re¬‚ecting the interests and expressed preferences of the local
electorate. This is not something to be deplored, for it is a consequence of a
di¬usion of power which helps to keep the constitution in balance. In the latter
years of the twentieth century the balance shifted in favour of the centre, as local
authorities performed a diminished range of functions on conditions and
262 British Government and the Constitution


within limits increasingly determined by central government. At the same time
central government pursued its objectives in a manner which disregarded the
conventional restraints and understandings that had previously characterised
central-local government relations. In the result, as Martin Loughlin has
observed, there took place a ˜politicisation™ of the central-local government rela-
tionship and also, with increasing recourse to law by both sides, a ˜juridi¬cation™
of that relationship, such that ˜the traditional framework™ within which central-
local government relations had been conducted ˜was rapidly disintegrating™
(˜Restructuring of central-local government relations™ in J Jowell and D Oliver
(eds), The Changing Constitution (4th edn 2000). See also M Loughlin, Legality
and Locality (1996), chs 2 and 7, and Loughlin in V Bogdanor (ed), The British
Constitution in the Twentieth Century (2003), ch 13.)
In Scotland, central-local government relations now have to be viewed
through the prism of devolution. Although the Scotland Act 1998 ˜made no
provision directly a¬ecting the structure or functions of local authorities in
Scotland™ (Himsworth in A McHarg and T Mullen (eds), Public Law in Scotland
(2006), p 168), devolution has nonetheless had a signi¬cant impact on local gov-
ernment in Scotland. Scottish local government is not a reserved matter under
the Scotland Act and has in recent years been an area of ˜vigorous legislative
activity™ by the Scottish Parliament (Himsworth, ibid). See eg, the Ethical
Standards in Public Life (Scotland) Act 2000, the Scottish Local Government
(Elections) Act 2002, the Local Government in Scotland Act 2003 and the Local
Governance (Scotland) Act 2004. Moreover, as Himsworth reports:

The new planning legislation foreseen in the [Scottish] Executive™s White Paper Modernising
the Planning System (2005) will increase central intervention in the planning process.
Intervention in school education has already been seen in the shape of new powers for the
Scottish Ministers under the School Education (Ministerial Powers and Independent Schools)
(Scotland) Act 2004. Housing is ceasing to be the local authority service it once was, with
substantial transfers of stock to housing associations.

As Himsworth concludes, local authorities both north and south of the border
are losing their ˜political distinctiveness™ and are becoming ˜merely a part of a
new pattern of local administration “ made up of a variety of bodies both public
and private “ which is malleable™ at the instigation of central (or, in Scotland,
devolved) government.
The Labour Government which took o¬ce in 1997 committed itself, in
signing the European Charter of Local Self-Government in 1997, to the
Charter™s principles of democratic local government. The Government under-
took a programme for ˜modernisation™ of the management, performance and
accountability of local government in England and Wales, and declared its aim
to revive the ˜partnership™ of central and local government. The programme has
evolved in successive White Papers (Modern Local Government, Cm 4014/1998,
Local Leadership, Local Choice, Cm 4298/1999 and Strong Local Leadership:
263 Devolution and the structure of the UK


Quality Public Services, Cm 5327/2001), administrative measures and legisla-
tion (Local Government Acts of 1999, 2000 and 2003).
In 2004 the Government announced a new ˜Vision for the future™ which
would ˜develop a longer term strategic approach to local government in
England™. This was intended to ˜establish a more coherent and stable relation-
ship between local and central government™; ˜clarify accountabilities and
responsibilities at each level for the delivery of services™; ˜improve local com-
munity leadership™; ˜increase levels of citizen engagement™; ˜secure improve-
ments in public services™; and ˜ensure the ¬nance system is fair and ¬t for the
purpose™. (The Future of Local Government: Developing a 10 Year Vision (ODPM
2004).) A debate on these ambitious goals was conducted in a series of discus-
sion documents, leading to the publication of a Government White Paper in
October 2006: Strong and Prosperous Communities, Cm 6939/2006. (See Leach
and Pratchett, ˜Local government: a new vision, rhetoric or reality™ (2005) 58
Parliamentary A¬airs 318.)
These reforms are a potentially ambitious project for strengthening local
democracy, responsiveness, leadership and accountability. There are some
inconsistencies and tensions in the reforms and they have met with a mixed
response: there has been criticism of their prescriptive nature and of the exten-
sive powers of intervention retained by central government. Yet, if successful,
they may yet encourage something of a renewal in the e¬ectiveness and vitality
of local government.
(See generally M Loughlin, Legality and Locality: The Role of Law in Central-
Local Government Relations (1996); I Leigh, Law, Politics, and Local Democracy
(2000); P Carmichael and A Midwinter (eds), Regulating Local Authorities:
Emerging Patterns of Central Control (2003); J Stewart, Modernising British Local
Government: an Assessment of Labour™s Reform Programme (2003); G Stoker and
D Wilson (eds), British Local Government into the 21st Century (2004); G Stoker,
Transforming Local Governance: From Thatcherism to New Labour (2004);
Loughlin, ˜The demise of local government™ in V Bogdanor (ed), The British
Constitution in the Twentieth Century (2003); Leigh, ˜The new local govern-
ment™ in J Jowell and D Oliver, The Changing Constitution (5th edn 2004);
Himsworth, ˜Local government in Scotland™, in A McHarg and T Mullen (eds),
Public Law in Scotland (2006).)
5

The European dimensions




Contents
1 European Convention on Human Rights
(a) European Court of Human Rights and its impact on British constitutional law
(b) Domestic influence of the ECHR
2 The European Union
(a) Nature and development of the European Union
(b) Institutional structure and law-making powers
(c) Principles of European law: supremacy, direct and indirect effect
and state liability
(d) EU law in the United Kingdom


No successful account of the British constitution can now be con¬ned to insti-
tutions, events or laws which are exclusively British. Over the past half century,
as the constitutional importance of the Commonwealth has declined, so has the
signi¬cance of ˜Europe™ grown and grown again. ˜Europe™, in this context,
denotes two international organisations in particular: ¬rst, the Council of
Europe and its European Convention on Human Rights and secondly the
European Union. As was made clear in chapter 2 (see p 62), it is imperative not
to confuse these two legal ˜Europes™ with one another. This is not least because
the impact which each has had on the British constitution is di¬erent. In this
chapter attention will ¬rst be given to the European Convention on Human
Rights. We shall then go on to consider the nature and structure of the European
Union and the impact of European Union membership and Community law
on the United Kingdom.


1 European Convention on Human Rights
The European Convention on Human Rights (ECHR) is an international treaty
made under the auspices of the Council of Europe, which is based in Strasbourg
in eastern France. The United Kingdom was the ¬rst country to ratify the
265 The European dimensions


ECHR, in March 1951. The Convention came into force in 1953 and the
European Court of Human Rights handed down its ¬rst judgment in 1961.
From these slow post-War beginnings has grown an extraordinary and
genuinely pan-European human rights regime. The Council of Europe now has
forty-six member states, all of whom are parties to, and are hence bound by, the
Convention. This membership stretches from Iceland to Turkey, from Finland
to Malta, and from Portugal to Russia. Ukraine, Azerbaijan, Armenia and
Georgia are all members, as are all twenty-seven Member States of the European
Union. In the past twenty-¬ve years the increase in the number of cases brought
before the Court of Human Rights has been exponential: 1980, for example, saw
404 applications registered; by 1997 this number had risen more than ten-fold
to 4,750. The Court delivered a mere seven judgments in 1981; in 1997 it
delivered 119.
The year 1998 saw a signi¬cant change in the structure of the Strasbourg
organs. Until that year there had been a European Commission of Human
Rights as well as the European Court of Human Rights. The Commission gave
the initial assessment of applications, weeding out those “ the large majority “
which were inadmissible (the criteria for admissibility are set out in the
Convention) and judging the merits of those which were admissible. Cases
could be referred to the Court only after they had ¬rst been dealt with by the
Commission. Protocol No 11 to the Convention, which came into force in
1998, abolished the Commission and turned the Court into a full-time body.
There is one judge on the Court for each state party to the Convention “ judges
are elected to the Court by the Parliamentary Assembly of the Council of
Europe from lists of three candidates submitted by the governments of the
states parties. Since 1998, however, the Court™s caseload has continued to grow
at an explosive rate: the number of new applications increased from 18,200 in
1998 to over 44,000 in 2004. As a result, further reforms of the structure
and working methods of the Court are needed and a new Protocol to the
Convention (No 14), which would e¬ect further reforms, was opened for
signature in 2004. It cannot come into force, however, until it has been rati¬ed
by all forty-six parties to the Convention (the United Kingdom rati¬ed
the Protocol in January 2005). It has been suggested that even this reform is
˜a missed opportunity and is likely, at best, to be only a partial success™ (Greer,
˜Protocol 14 and the future of the European Court of Human Rights™ [2005]
PL 83, 85).
Under present arrangements any individual claiming to be a victim of a vio-
lation of the Convention may lodge an application directly with the European
Court of Human Rights in Strasbourg (a list of the principal rights protected
under the Convention was given above, p 63). Applications are initially
considered by Committees of three judges, who decide whether the applica-
tion is admissible. Applications may be declared inadmissible only if the
Committee of three is unanimous. If there is disagreement, or if the
266 British Government and the Constitution


application is found to be admissible, it is referred to a Chamber of seven
judges. Such Chambers determine both the admissibility and the merits of
applications. Chambers may relinquish jurisdiction in favour of the Grand
Chamber (composed of seventeen judges) where a case raises a serious ques-
tion of interpretation of the Convention or where there is a risk of departing
from existing case law (for more detail see Mowbray, ˜The composition and
operation of the new European Court of Human Rights™ [1999] PL 219).
(Protocol No 14, if it comes into force, would allow individual judges to
consider questions of admissibility alone and would allow Committees of
three judges to consider applications on their merits; it would also change the
terms of appointment to the Court from the current renewable term of six
years to a single term of nine years.)
In 2005 the Court delivered 1,105 judgments, of which only 12 were
delivered by the Grand Chamber. These ¬gures reveal two things: ¬rst that it
continues to be the case that the overwhelming majority of applications
received by the Court are inadmissible (only 1,036 of the 41,510 applications
received in 2005 were admissible); and secondly that among those applica-
tions which are admissible the vast majority of the Court™s caseload is routine,
with only a dozen cases requiring a decision by the Grand Chamber. In 2005
more than 60 per cent of the Court™s caseload (ie, of the Court™s 1,105 judg-
ments handed down in that year) concerned just ¬ve states: Turkey, Ukraine,
Greece, Russia and Italy. Moreover, more than half the Court™s caseload
concerned just ¬ve matters of substance, on all of which the Court has ruled
many times before: the length of court proceedings, the non-enforcement of
judicial decisions (which is a particular issue in Ukraine), delays in the
payment of compensation (a particular problem in Turkey), the indepen-
dence and impartiality of State Security Courts in Turkey, and the use of
a certain form of expropriation in Italy. The length of court proceedings
(an aspect of the right to a fair trial) is the subject-matter of about 25 per cent
of the Court™s caseload.
(See further C Ovey and R White, Jacobs and White: The European Convention
on Human Rights (4th edn 2006) and D Harris, C Warbrick, E Bates and
M O™Boyle, Law of the European Convention on Human Rights (3rd edn 2007).)


(a) European Court of Human Rights and its impact on British
constitutional law
What impact have the judgments of the European Court of Human Rights had
on British constitutional law? This matter is addressed in the following extract.
(By way of explanation, states parties to the Convention were not required to
accept the jurisdiction of the Court (as opposed to that of the now defunct
Commission) until 1998: before that date this was optional among states that
had rati¬ed the Convention. The United Kingdom accepted the jurisdiction of
the Court with e¬ect from January 1966.)
267 The European dimensions


Lord Lester and Lydia Clapinska, ˜Human Rights and the British
Constitution™, in J Jowell and D Oliver (eds), The Changing Constitution
(5th edn 2004), pp 67“9

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