Ities in England and Wales.

At present county councils are responsible for education, strategic

land-use planning, waste disposal, highways (other than trunk roads

and motorways), personal social services, police, consumer protection

and transport. District councils are responsible for housing, detailed

town and county planning controls, public health, refuse collection,

the control of commercial premises and urban passenger transport.

Within rural districts there are parishes (in Wales, community councils).

These have purely local functions such as footpaths and recreation

grounds and must be consulted on land use planning matters. The larger

ones have elected councils, others operate through a parish meeting

and parish trustees. Scotland has a separate local government system.

There are provisions for co-operation, delegation and joint functions

between authorities.

Under the Local Government Act 1985 the six ‘metropolitan’ areas

(West Midlands, Merseyside, Greater Manchester, West Yorkshire,

168 General Principles of Constitutional and Administrative Law

South Yorkshire, Tyne and Wear) have only a single level comprising

district councils without there being any authority responsible for the

whole area. Until the Greater London Assembly Act 1999 this also

applied to London which after 1985 was the only western European

capital without a local authority. There are 32 London boroughs plus

the City of London which is a chartered corporation responsible for the

small largely commercial enclave within central London. There are also

special authorities including the Inner London Education Authority

and various non-elected specialised bodies (for example, the Port

of London Authority, the Metropolitan Police).

Under the Greater London Authority Act 1999 London now has

an elected assembly of 25 people and an elected mayor, currently Ken

Livingstone. Neither has significant executive power. Subject to cen-

tral government control, the mayor makes and sets budgets and draws

up general plans and policies relating to transport, land use planning,

environmental protection and culture. He appoints certain executive

bodies relating to transport, policing and fire services, although there are

also powers vested in central government and the London boroughs.

In particular transport policy is specifically subject to central govern-

ment power to impose a public/private partnership regime on the rail-

way system (s. 210). The mayor and the authority also have the general

functions, but without corresponding general powers, of promoting

economic and social development, wealth creation and environmental

protection in Greater London. The authority’s main functions are to

scrutinise and approve budgets, debate policy, question the mayor,

participate in the appointment of staff, and comprise part of the police

and fire and emergency powers authorities. Most local government

powers in London are, however, still exercised by London boroughs

over which the Greater London Assembly has no control.

8.2. Structure and Powers

Except for the City of London Corporation which was created by char-

ter, local authorities are statutory bodies. They are corporations with

separate legal personality and are controlled by elected councils. As a

statutory body a local authority can only do what is expressly or im-

pliedly authorised by statute thereby embodying a strict version of the

rule of law at the expense of local democracy (see R. v Richmond LBC

[2001] 1All ER 436, 447 per Buxton LJ). By this means the courts are

able to exercise considerable control over local government activities.

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Local Government

The limits on local authority powers can be illustrated by R. v.

Somerset CC ex parte Fewings (1995). For different reasons, Laws J

and the Court of Appeal held that a local authority was not entitled to

ban stag-hunting for moral reasons on land that it owned. The local

authority had wrongly assumed that because it owned the land it had

the same rights as a private landowner and also argued that democracy

entitled it to make the moral judgement to ban hunting. Laws J denied

that the moral views of councillors could be relevant. He did not think

that local democracy was a factor that could be taken into account

unless the governing statute made it clear that this so to be the case.

The Court of Appeal took a slightly broader approach being prepared

to interpret the particular statute as allowing moral factors to be taken

into account but even they were not prepared to adopt a strong

principle of local democracy (see Alder, 2001). Other examples of

judicial limits on local government powers will be found in Chapter 16.

8.3 Control by Central Government

Local government is protected against central intervention only in as

much as the central government must justify any intervention under

statutory powers. During the 1980s, when central government con-

siderably extended its powers of control and also cut back local

government spending, there was considerable litigation brought by

local authorities against ministers. This had mixed success. The courts

have been unable to formulate any principles governing the constitu-

tional relationship between local and central government but have

relied upon particular statutory contexts.

Apart from its power to legislate, central government control over

local authorities takes many forms. They include the following:

(i) Stringent financial controls (below).

(ii) Default powers exercisable by ministers. The circumstances in

which default powers can be exercised depends on the particu-

lar statute. In some cases ‘unreasonable behaviour’ is required

(e.g. Education Act 1944 s. 88). In Secretary of State for Education

and Science v. Tameside MBC (1976) the House of Lords sup-

ported local independence by holding that the Secretary of State

could intervene only if the authority’s behaviour was unreason-

able in the sense of completely irrational. This test was adopted

from that used to decide when a court can interfere with a local

authority, and is arguably inappropriate as the test for central

170 General Principles of Constitutional and Administrative Law

government interference, although it does serve to buttress local

independence. However, under differently worded legislation the

Secretary of State can take over a local activity without the need

to find unreasonable behaviour (see Norwich City Council v.

Environmental Secretary (1982), where only Lord Denning treated

the matter as one involving the constitutional importance of local

autonomy).

(iii) The power to veto local government decisions, for example bylaws,

compulsory purchase orders and planning appeals.

(iv) The power to regulate local authority activities by setting per-

formance standards issuing policy advice and regulating the use

of money.

(v) Inspections, audits and inquiries under many statutory provisions.

(vi) Jointly funded central/local enterprises such as urban renewal

schemes.

The regime introduced by the Local Government Act 2000 could be

said to adopt a Millian approach in favour of local autonomy (above

p. 36). Unlike Mill, however, the Act favours central discretionary inter-

vention in matters of detail (e.g. s. 5). Section 2 empowers a local

authority to do any thing which it considers is likely to promote or

improve the economic, social or environmental well-being of its area,

but is compromised by s. 3, which gives a power of veto to the Secretary

of State. Nor can s. 2, override any existing statutory restrictions. How-

ever, the Secretary of State has a wide power to amend and even to

disapply legislation (s. 5). The Local Government Act 1999 imposes

substantive direction on local authorities in the form of the ‘Best Value’

regime, which calls for continuous improvement in the delivery of

services and ‘public service agreements’. These give an opportunity for

relative operational freedoms but, on a selective basis, conferred by the

Secretary of State in return for commitments to centrally directed goals

(ss. 2, 16, 30). From a republican perspective therefore this remains

a condition of domination in that the master’s non-interference is a

matter of goodwill rather than obligation.

8.4 Internal Constitution

Before the Local Government Act 2000 there was no internal separa-

tion of powers. Under its corporate structure a local council is both

legislature and executive although its legislative functions are limited

to the power to make bylaws for ‘good rule and government and

171

Local Government

suppression of nuisances’ (LGA 1972 s. 235). These must be confirmed

by the Secretary of State. There is no separate representative assembly

to which the authority is responsible. Local authority decisions are

corporate decisions made mainly through committees comprising a

mixture of elected members and appointed officials with decisions

often delegated to officials. This entails weak accountability and the

influence of unelected officials as policy makers.

The Local Government Act 2000 Part II introduces a new structure

with the intention of strengthening local efficiency and accountability.

The Act requires local authorities to adopt a governance model that

separates the executive function from the role of supervision and

scrutiny (ss. 10, 11). Local authorities must adopt one of three models

or accept a regime imposed by the Secretary of State. The models are

as follows: (i) an elected mayor (elected under the supplementary vote

system, see Chapter 11) who cannot be a councillor and a cabinet of up

to 10 councillors appointed by the mayor; (ii) a leader and cabinet

appointed by the council itself; (iii) an elected mayor and professional

manager appointed by the council; (iv) a structure imposed by the

Secretary of State, which might be at the proposal of the authority.

In the case of the elected mayor models a referendum must first be held

(s. 34). Any proposals to the Secretary of State must meet the ideology

of the Act by being ‘efficient , transparent and accountable’ (s. 12 (3))

and in the case of proposals for the operation of the executive must be

have regard to ‘efficiency’, economy and effectiveness’ (s. 25 (4)).

The council is to agree the general policy framework and budget,

following proposals from the executive, to scrutinise the actions of the

executive and to hold the executive to account both before and after the

implementation of the policies. For this purpose councils are required

to establish overview and advisory committees independent of the

executive (s. 21). They must be politically balanced (s. 21 (11) (b),

although the executive itself need not be balanced so that as in the

case of central government, the executive can comprise only the major-

ity party. The committees can also take outside advice, for example

from voluntary or private sector bodies, thus reflecting the notion of

‘community leadership’ that informs the Act (see Local Government: In

Touch with the People, Cm. 4014 (1998), para. 8.1 et seq.; DETR,

Modernising Local Government and Community Leadership (1998)).

Open government is not secured. Subject to regulations made by the

Secretary of State, the executive and the committees can decide what

meetings will be held in public (s. 22 (8)(9)). Written records of meetings

must be made available to the public but again subject to regulations

made by the Secretary of State who can censor them (s. 22 (6) (7)).

172 General Principles of Constitutional and Administrative Law

In relation to ethical standards local authority autonomy is not

trusted. There is a code of recommended practice issued by the Secre-

tary of State relating to standards of propriety of councillors, for

example concerning conflicts of interest. The Local Government Act

2000 Part III strengthens this in the light of the ‘Nolan’ principles of

public life by means of a Standards Board for England appointed by

the Secretary of State (s. 57). Anyone can make a complaint to an

Ethical Standards Officer of the Board and there is an investigative

process which can lead to the suspension or disqualification of a local

council member. In addition each local authority must have a Stan-

dards Committee, including two outside members which advises upon

and monitors the Code of Practice (see DETR, General Principles of

Conduct in Local Government, 2001). In addition the Local Govern-

ment and Housing Act 1989 requires local authorities to designate a

‘head of paid services’ to report to it on the general management and

co-ordination of its functions (s. 4) and also a ‘monitoring officer’

to report on whether the authority is acting lawfully and without

maladministration (s. 5). The chief executive but not the chief finance

officer can fill both roles (s. 31).

8.5 Party Politics

The local electoral system gives less opportunity for party dominance

than is the case with central government. Elections must be held when

prescribed by statute (LGA 1972 s. 7) and there is no convention

permitting the party in power to dissolve the council and precipitate an

election. In the case of county councils, the whole council is elected

every four years. In the case of districts, one-third of the members

must be elected each year, although a non-metropolitan district can

decide to elect the whole council every four years. The rules govern-

ing the conduct of local government elections are broadly similar to

those for parliamentary elections. However, electors can vote in every

local government area in which they have a residence and candidates

must have a residential connection with the area (LGA 1972 ss. 79–81

as amended).

The courts have recognised the political dimension of local

government. For example a councillor is entitled to be influenced by

the policies of his political group provided that he does not completely

close his mind to other considerations and does not blindly adopt

party policy (see R. v. Waltham FDC ex parte Baxter (1988). A local

authority can also exclude a person who opposes party policy from a

173

Local Government

committee (R. v. Greenwich London Borough Council ex parte Lovelace

(1990)); contrast school governor: Brunyate v. ILEA (1989)).

However, the political dimension of local government has been

regulated by statute. During the 1980s the Conservative government

was concerned to ensure that local councils did not frustrate the

market-orientated policies adopted by the government. The Widdi-

combe Committee was set up to consider the question of local authority

management and politics from the government’s perspective. Its report

(Cmnd. 9997 (1986)), adopting the position that local government has

no constitutional right to exist, restated the well-known vices of party

politics, namely corruption, bribery, conflict and bias, and suggested

that local democracy be curbed. The Local Government and Housing

Act 1989 Part I, therefore introduced restrictions upon party political

activity. In as much as these provisions restrict freedom of expression,

they may now be challengeable under the Human Rights Act 1998.

(i) A requirement that committee composition reflects the balance

of parties. This can be overridden by unanimous vote (s. 17).

However, as we have seen, under the new structures imposed by

the Local Government Act 2000, the composition of the execu-

tive need not reflect party balance.

(ii) Forbidding ‘twin tracking’ and involvement in politics by staff

holding ‘politically restricted’ posts. Twin tracking is where a

council member also works for the same or another local author-

ity. Teachers are automatically exempt and other exemptions can

be granted by an adjudicator/adviser appointed by the Secretary

of State (s. 3). The general criteria for a ‘politically restricted’ post

is a salary level of £19,500 which can be varied by the Secretary of

State. Below that level certain jobs which involve giving advice

to the authority or dealing with the media are also restricted

(s. 2). Certain senior officers are automatically restricted (ibid.).

(iii) Officers can be appointed and dismissed only ‘on merit’. This

attacks an obvious abuse. Again the Secretary of State can make

detailed regulations (LGA 1989 ss. 7, 8).

(iv) Local authorities can appoint no more than three political ad-

visers whose posts must be temporary and paid less than £13,500

(although this limit can be raised by the Secretary of State).

(v) Co-opted (non-elected) committee members cannot vote (except

in the case of police committees and education committees in

respect of statutory co-optees, magistrates and school gover-

nors). Co-option allows an element of direct democracy with its

danger of interest-group domination.

174 General Principles of Constitutional and Administrative Law

(vi) Local authorities are not entitled to spend money on politi-

cal propaganda (R. v. ILEA ex parte Westminster City Council

(1986)). A local authority may not publish material which appears

to be designed to affect public support for a political party (LGA

1986 Part II) or spend money on publicity except incidentally to

its other functions. This is intended to prevent local authorities

undertaking political campaigns unrelated to local concerns.

(vii) The Secretary of State can impose conditions of employment,

including conditions upon publications intended to support the

aims of a political party (s. 1 (5); Local Government Officers

(Political Restrictions) Regulations 1990 (SI 1990 No. 851)). The

meaning of ‘political party’ is not defined but arguably a pressure

group such as Amnesty International, even though it seeks to

advance a political cause, is not a political party because it is not

seeking election. In the case of the central civil service, restric-

tions on political activity are more limited and there are wider

exemptions (see Chapter 12).

8.6 Finance

The independence of local authorities is directly connected with the

extent to which they can raise and spend money. About three-quarters

of their income is provided by central government. Local authority

income derives from the following sources:

(i) Local taxes. There are two kinds of local tax. One is the domestic

‘council tax’ which is levied on the sale value of domestic property

as estimated by the Inland Revenue. The amount raised by this

method can be limited by the Secretary of State, subject to an

affirmative vote of the Commons (Local Government Finance

Act 1992; Local Government Act 1999). The other local tax is the

‘uniform business rate’ fixed by central government and

distributed to authorities according to an equalisation formula

(Local Government Finance Act 1988). Businesses have no vote

in local elections.

(ii) Central government grants. These are payable according to a

complex formula the essence of which is to give the Secretary of

State a discretion to decide how much local authorities should

spend. Grants are currently calculated upon the basis of a ‘stan-

dard spending assessment’ of how much each authority is sup-

posed to spend upon each of its services. Grants are also made

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Local Government

under specific statutory powers and earmarked to individual

services, for example housing and urban renewal. These ear-

marked grants are often awarded on a competitive basis (e.g. the

‘City Challenge’ scheme).

(iii) Borrowing and investment. Local authority general borrowing

levels are regulated by central government (Local Government

and Housing Act 1989 ss. 43, 44) and the power of an authority to

speculate on the money market is very limited. Prudent specula-

tion is possible but only for the limited purpose of facilitating

borrowing itself, as opposed to managing debts already incurred

(Hazell v. Hammersmith and Fulham London Borough Council

(1992) interest rate swaps).

(iv) Fees, charges and rents. Local authorities can charge for services

only where specifically authorised to do so by statute (see R v.

Richmond LBC (2001). This is because of the basic constitutional

principle of no executive taxation. The courts seem to consider

that a charge by a public body and tax are the same thing (see

Macarthy and Stone Ltd v. Richmond LBC (1992)). There are pro-

visions which prevent local authorities from setting up subsidiary

companies that avoid central controls over public spending (Local

Government and Housing Act 1989 Part V).

(v) Sales of land. The consent of the Secretary of State is required for

a sale at less than market price and in all cases for the disposal of

housing land (LGA 1972 s. 103; LGA 1988 s. 25; Housing Act

1985 s. 32).

8.6.1 Legal restrictions on spending

By virtue of its statutory basis, local spending can be directly challenged

in the courts on the basis that money can be spent only on activities

authorised by statute or reasonably incidental thereto. The courts take a

narrow view of what is reasonably incidental thereby discouraging local

enterprise and making it difficult for local authorities to raise funds (see

Mcarthy and Stone Ltd v. Richmond Borough Council (1992); Hazell v.

Hammersmith and Fulham London Borough Council (1992)). Many of

the cases discussed in Chapter 16 provide further illustrations.

The courts have sometimes held that local authorities have a

‘fiduciary’ duty to act in the interests of local taxpayers even against

those of the public as a whole thereby confounding the normal ideas

of democracy. In a general sense, that of Locke (see Chapter 2), the

fiduciary principle is fundamental to the nature of government which is

often said to hold its power on trust. It signifies that government has