178 General Principles of Constitutional and Administrative Law

Several matters are excluded from the ombudsman’s jurisdic-

tion. Among these are personnel matters, commercial transactions

(a particularly sensitive area with the increasing privatization of local

government functions), and some educational functions. Also excluded

are actions affecting all or most of the inhabitants of the area.

Actions against which there is a remedy in the courts or an appeal to

a minister are excluded, but the ombudsman has a wide discretion

to override this where the citizen cannot reasonably be expected to

exercise his right, for example because of cost (s. 5 (2)). This proviso is

Increasingly important in view of the flexible nature of judicial review

which is capable of including most kinds of maladministration. Judicial

review is expensive and as we shall see is not designed to investigate

factual disputes. In R. v. Local Commissioner for Administration ex

parte Croydon LBC (1989) it was held that the relevant test is whether

the issues are suitable for resolution by the courts, and not the appli-

cant’s chance of success. R. v. Local Commissioner ex parte Liverpool

City Council (2001) concerned an attempt by a group of local residents

to challenge a planning permission for a new stand at a football

stadium on the grounds that several councillors had season tickets for

the stadium and that undue party political pressures had been brought

to bear on council members. The Court of Appeal held that because

the allegations were serious and the ombudsman’s powers of investiga-

tion were more likely to be effective than judicial review and because

the complainants were not wealthy this was ‘a good example of a case

where the commissioners investigation and report can provide the just

remedy when judicial review might fail to; and can reach facts that

might not emerge under the judicial review process’ ( Henry LJ at 472).

Complaints must be made in writing to a member of the council

concerned who can then refer the complaint to the ombudsman. The

local ombudsman can be approached directly by a member of the

public if the councillor does not refer the complaint. About 50% of

cases reach the ombudsman this way, but over three-quarters of all

complaints turn out to be outside the ombudsman’s jurisdiction. The

ombudsman investigates informally but has powers to see documents

and require information from councillors and officials. The result of

the investigation is sent to the complainant and to the council con-

cerned and must be available for public inspection (including copying)

for three weeks. A newspaper advertisement must draw attention to

the report (LGA 1974 s. 30). If the Commissioner thinks that the

authority has not taken adequate measures to put matters right he or

she can make a further report (s. 31). Beyond the political sanction of

publicity the local ombudsman has no powers. This has turned out to

179

Local Government

be a serious problem because a significant number of councils have

ignored the findings of the ombudsman. Normally individuals cannot

be named in the ombudsman’s reports. However, this does not apply

where there is a breach of the National Code of Local Government

Conduct ( Local Government Act 1974 s. 30 (3A)). The local com-

missioners make an annual report to special ‘representative bodies’

drawn from local authorities.

Summary

8.1 There are several constitutional arguments in favour of independent local

authorities. These include democracy, checks and balances, the efficient use

of resources and individual self development. There are also arguments

based on efficiency and equity for central control over local government. The

courts have not adopted any coherent approach to the place of local

government in the constitution.

8.2 Elected local authorities are statutory corporations and can exercise only

powers conferred by statute. There are two main levels of local authority:

county councils and district councils. In London there is Greater London

Assembly, the City of London Corporation, the City of Westminster and

Metropolitan Borough Councils. The relationship between local councils

within an area is not one of superior and inferior. Each has specific functions

designated by statute.

8.3 There are many central government controls over local authorities. Central

control over local authorities has increased in recent years.

8.4 Officials play a more prominent role than is the case with central government.

There are provisions designed to weaken party political activity.

8.5 The Local Government Act 2000 has departed from the traditional corporate

model of local government by requiring a separation between the executive

and the accountability and scrutiny functions of local authorities.

8.6 Local authorities have very limited financial powers and these are regulated

by central government and subject to independent audit by the Audit

Commission.

8.9 Citizens’ grievances can be ventilated through Commissioners for Local

Administration (the local ombudsman). Their powers are limited to maladmin-

istration and there is no method of enforcing their recommendations except

political pressure and publicity. However, the resources and investigatory

powers of the ombudsman will often make it more effective than the courts.

Further Reading

‘Modern local government in touch with the people’ Cm. 4014 (1998) 59 Political

Quarterly 236.

Alder, J. (2001) ‘Incommensurable values and judicial review: the case of local

government’ Public Law 717.

180 General Principles of Constitutional and Administrative Law

Loughlin, M. Legality and Locality.

Chandler (1989) ‘The liberal justification for local government’, XXIV Political tudies

604.

Jowl and Oliver, The Changing Constitution, chapter 6.

Stewart, J. The Nature of British Local Government.

Norton, The British Polity.

Vincent-Jones, P. ‘Central-Local relations under the Local Government Act 1999:

a new consensus? 63 Modern Law Review xxx.

Wilson, D. (1999) ‘Exploring the limits of public participation in local government,’

52 Parliamentary Affairs 246.

Wilson, D. (2001) ‘Local government: balancing diversity and uniformity’, 54 Parlia-

mentary Affairs 289.

Exercises

8.1 Local government has no right to exist.’ Discuss.

8.2 To what extent do the courts protect local democracy?

8.3 To what extent is local government a creature of the central executive?

8.4 Do the reforms made to local government by the Local Government Acts 1999

and 2000 amount to a genuine attempt to strengthen local autonomy and

accountability?

9 The European Union

9.1 The Nature of the European Union

What were then called the European Communities or the Common

Market were created after the Second World War as an aspiration

to prevent further wars in Europe and to regenerate the European

economies. The prototype was the European Coal and Steel Commu-

nity created by the Treaty of Paris 1951. The other Communities were

created in 1957 by two Treaties of Rome. They are the European Com-

munity (EC) (formerly called the European Economic Community),

and the European Atomic Energy Community. The EC is by far the

most important, and responsible for most of the legal and political

activity. The three communities share the same basic institutions. The

founder members were France, Germany, Italy, Luxembourg, Belgium

and the Netherlands. The UK became a member in 1972 and, by virtue

of the European Communities Act 1972, laws made by EC bodies are

binding in English law. The other members who joined at various

later dates are Austria, Denmark, Finland, Greece, Ireland, Portugal,

Spain and Sweden.

As a result of the Treaty on European Union (Maastricht Treaty) of

1992, the communities have been subsumed within the broader struc-

ture of the ‘European Union’, a process which was consolidated by the

Amsterdam Treaty in 1997 (TEU). However, since Maastricht there has

been substantial political concern that the process of European inte-

gration should be restrained, not least because the European Union is

widely regarded as undemocratic. Indeed the Amsterdam Treaty intro-

duced safeguards and flexibility arrangements in favour of national

governments (Shaw, 1996). Nevertheless the Nice Treaty of 1999 deals

with the proposed expansion of the Union to include the follow-

ing states most of which were previously satellites of the Soviet Union:

Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia,

Lithuania, Malta, Romania, Slovakia, Slovenia. However, the Nice

Treaty has not been ratified as required by all member states. In a

referendum the Irish electorate rejected it. Turkey also seeks member-

ship. Enlarged membership is likely to require substantial alterations

to the EU decision-making process in order to reflect the changed

political balance.

181

182 General Principles of Constitutional and Administrative Law

The Treaties, which were consolidated after Amsterdam arguably

form a crude constitution. In this chapter unless stated otherwise, refer-

ences to Articles refer to the consolidated Treaty. All EC powers must

be authorised by the Treaty in the light of the fundamental values

shared by the members. In 1991 the European Court of Justice, which is

charged not only with securing compliance with the law but also with

advancing the aims of the Communities, described the EC Treaty as a

‘constitutional charter’ based on the rule of law. It emphasised that

individuals as well as states are the subjects of community law although

in fact, individuals other than those employed by the EC have only

limited rights to instigate proceedings in the court (see Opinion on the

Draft Agreement on a European Economic Area [1991] ECR 1-6084).

The European Union as such has no legal identity, nor institutions

nor lawmaking power, but exercises an overall policy-making role

through inter-governmental agreements sometimes ‘borrowing’ com-

munity institutions for the purpose. Binding law is made by the Euro-

pean communities. The objectives of the communities were originally

exclusively economic. A fundamental aim was to encourage free trade

between member states, but the organisation was heavily influenced

by a desire to protect agricultural interests espoused principally by

France. This has left the EU with a heavy financial burden in that

about 70% of its budget is still devoted to agricultural subsidies.

Since then the interests of the EU have steadily widened, partly by a

bureaucratic process of interpreting the existing objectives liberally

and partly by the member states formally agreeing to extend the areas

of competence of the EC. In particular the Single European Act of

1986 made environmental protection a separate area of competence.

The Union has also developed a substantial security and foreign policy

perspective endorsed by the Treaty of Amsterdam. There are few areas

of UK law that are immune from EC influence which was famously

described by Lord Denning as an ‘incoming tide’ (Bulmer v. Bolinger

(1974)). In terms of legislative imput from Europe there is currently no

sign of the tide going out.

The Maastricht Treaty instigated progress towards monetary union,

including the creation of an independent European Central Bank.

There is now a single European currency, the ‘Euro’ which is regulated

by the European Central Bank (Art. 4). The UK does not participate

in this. Those states within the ‘eurozone’ are subject to central econ-

omic regulation by the European Central Bank which has no formal

democratic accountability. The possible effect upon the powers of the

UK Parliament, of the single currency, is one reason why the decision

whether or not to join the Euro is widely regarded as raising important

183

The European Union

constitutional issues. The current government has promised that the

decision will be taken only after a referendum. There is also freedom of

movement between the mainland EU states under the Schenken Agree-

ment. The UK is not a party to this. Involvement in the European

enterprise is therefore multi-layered, sometimes described as ‘variable

geometry’.

The EU is said to have three ‘pillars’. The first pillar comprises the

central economic purposes of the European Communities together with

environmental protection. The second and third pillars were intro-

duced by the Maastricht Treaty and operate mainly at the political

level. The second pillar is foreign policy; the third pillar is co-operation