Symposium: Quasi-Federalism and Localism: The Constitutional Position of Local Government in the UK

John Stanton

University of London

The newly formed IACL Research Group on “New Frontiers of Federalism”, of which I am a member, “aims at exploring a number of emerging issues in classic federal theory and practice”. A detailed explanation of its objectives and research parameters is set out here. In this post, though, I aim to explain how my own research fits with the Group’s activities and contributes to its proposed investigations.

My academic expertise lies in the area of UK Constitutional Law, with a particular focus on localism and devolution. Of late, my work has explored the nature of central-local relations across the country, drawing from empirical research in comparing approaches across the various territories of the UK, between metropolitan and rural councils and between councils adopting differing organisational structures and arrangements. On this basis, my research is relevant to the first aspect of the Group’s stated lines of inquiry: “the study not only of the most traditional levels of government, but also of the role of local government and cities as new key players in the management of public services and in the protection of rights”.

The relevance of my research to the Group is rooted in the UK’s unique constitutional arrangements. In our uncodified system, it is Parliament that wields ultimate power. All other institutions and levels of government are legally subordinate. The emergence of devolution over the past twenty years, however, and the operation of legislative and executive institutions in Scotland, Wales and Northern Ireland as well as regional and local executive bodies in England has informed a fairly settled view that the UK is a quasi-federal state. It is quasi-federal in the sense that legal power is rooted firmly at the centre, but with devolution seeing a dispersal of power across lower levels of government; the relevant settlements protected politically, if not legally, from the overwhelming power of the centre by established convention.

Against this backdrop, my research – and its relevance to the Group – is predicated on the view that federalism (including the political structures in the UK’s quasi-federal system) serves as an “an effective instrument of ‘vertical separation’ of powers, counterbalancing the centralizing power of federal institutions in order to better protect individual rights from the power of the state”. In this vein, local councils, as well as cities, should feel able to take up an important role “as new key players in the management of public services and in the protection of rights”. Localities – especially those in city areas – harbour unique economic, social and cultural opportunities that can play an important role in the fabric of a nation and that are necessary to preserve and foster for the benefit of those localities and the wider nation. Councils within those localities are best place to oversee and supervise such opportunities, primarily through the “management of public services and in the protection of rights”.

The problem is, however, my research into local government has identified a system that is inherently top-down. The UK is one of the most centralised systems in Europe. Local councils can only do that which Parliament provides and central government instructs; they possess no residual discretionary authority or the ability to act independently from central instruction. This is at odds with the traditional role of local government as a democratically elected provider of local services and protector of individual rights. In other words, whilst in England (for example) local councils exist to provide a vast range of services, being endowed to this end with various powers, responsibilities and duties, in the exercise of these functions, councils are forever at the mercy of the instructions and whims of those in power in central government. Consequently, councils across England have long suffered from a lack of power at the hands of a heavily centralised state. The concern is that this obstructs “the role of local government and cities as new key players in the management of public services and in the protection of rights”, and prevents them from assuming an adequately autonomous role in the UK’s quasi-federal arrangements. Councils are less key players and more mere satellites of the centre.

It is not through a lack of constitutional provision that this state of affairs endures; rather it is afflicted by the approach to localism afforded by the centre. As I have written elsewhere:

“Localism manifests itself in two forms: substantive localism refers to the empowerment of local institutions through provisions setting out local power, whilst procedural localism denotes the broader process within which that power is facilitated and allowed to be exercised. Both of these aspects must be satisfied if the objectives of localism are to be achieved: one cannot operate without the other, insofar as the provision of local governmental power is meaningless if the lack of an appropriate procedural framework prevents councils freely exercising that power in their own specific ways. In England, procedural localism is lacking … whilst recent governments have provided substantive legislative provisions intended to empower local councils, the predominance of a top-down approach hinders the realisation of procedural localism and means, therefore, that the substantive element is undermined”.

To explain: there are a range of statutory provisions that empower councils with a full range of functions and responsibilities. The Localism Act 2011, as just one example of many, ostensibly sets out a range of powers for councils to develop neighbourhood plans, adjust levels of council tax, and do “anything that individuals generally may do”. The problem is, though, that the top-down approach adopted by central government often restricts the full realisation of these – and other – powers by prescribing and supervising the way in which they should be exercised. This means that councils are restrained by the overwhelming power of the centre, rather than able to exercise powers in unique and relevant ways, for the good of their local areas. The economic, cultural and social opportunities, unique to local areas, are thus subject to overly prescriptive instruction from the centre. This reality is backed up by empirical research, with councils across the UK experiencing central oversight in areas such as housing, education, planning and regeneration. My current research – which includes consideration of empirical data – explores ways in which this top-down approach can be corrected through firmer constitutional protection for councils. In so doing, it offers ways in which councils’ constitutional and legal status can be adjusted to permit them a stronger footing in the prevailing quasi-federal arrangements, fulfilling roles as “new key players in the management of public services and in the protection of rights”.

At this point, my research also touches upon the third limb of the group’s intended scope of investigation. This focuses “on the role of federalism broadly understood as a tool to deal with the new challenges posed by the economic crisis, large-scale human migration and the globalization to our constitutional systems”. Through exploring the way in which local government can establish itself more prominently within the UK’s quasi-federal arrangements, my research explores ways in which that system can provide a basis on which the UK’s governmental and constitutional system can evolve and develop; particularly in post-Brexit Britain), and tackle many of the challenges that present themselves in the UK’s modern democracy.

My research, therefore, firmly rooted in UK Constitutional Law and with an emphasis on the constitutional position of local government, fits within the work of the IACL Research Group on “New Frontiers of Federalism” by seeing how councils can take a more prominent role in the UK quasi-federal system as that system itself takes on a role as “an effective instrument of ‘vertical separation’ of powers, counterbalancing the centralizing power of federal institutions in order to better protect individual rights from the power of the state”.

Dr John Stanton, Senior Lecturer, is an academic at The City Law School, City, University of London.

Suggested citation: John Stanton, “Quasi-Federalism and Localism: The Constitutional Position of Local Government in the UK” IACL-AIDC Blog (24 October 2019) https://blog-iacl-aidc.org/new-frontiers-of-federalism/2019/10/24/quasi-federalism-and-localism-the-constitutional-position-of-local-government-in-the-uk