Combined authorities and accountability

With the drive to greater regional devolution, combined authorities, local authorities and other key stakeholders will need to address significant issues around accountability, writes Anja Beriro.

Does the public care (and should it?) about which public body is providing social care services or taking responsibility for planning functions in a particular area of England? Prior to the start of the devolution drive there was already some confusion over the roles of unitary, county and district councils. For example, why in some areas, did different councils have responsibility for waste collection and waste disposal? Why, if my elderly mother needed different accommodation was one authority responsible for the housing and one for the care package?

The Cities and Local Government Devolution Act 2016 came into force on 28 January 2016 to give effect to the desires of central government and provide some structure to devolution. The 2016 Act amends the manner in which a combined authority can be established and the powers that it can be granted. Whereas previously a combined authority was established to amalgamate the powers of its “constituent members” it can now also be devolved powers from central government. Arguably this is now more important because of where the funding is coming from. However, a lot of questions remain unanswered as to how and to whom combined authorities should be accountable. A combined authority is made up of its “constituent members”, those being local authorities within the area defined as the combined authority’s area. It can also have “non-constituent members”, for example, the Local Enterprise Partnerships (LEPs) within its area, which will probably have a lot of the day to day responsibility for carrying out the functions of the combined authority.

Under the 2016 Act there is a general requirement for a combined authority to have an elected mayor. This leader is granted a wide range of decision-making powers, some of which can be delegated to the authority. The extent of the mayor’s powers and whether they can be delegated will be set out in the statutory order creating the authority.

The most well-known so far is the Greater Manchester Combined Authority. As part of the drive for the Northern Powerhouse it has been devolved wide-ranging powers from central government covering housing, transport, economic regeneration and health and social care. Worryingly, when questioned in October 2015, three quarters of the population knew nothing or very little about devolution which raises the question of who will hold a combined authority to account if people don’t know who holds the power?

One argument is that when there is a vote for the mayor, people will be given the relevant information to be able to understand what, as well as who, they are voting for. Ultimately, the mayor is subject, from time to time, to re-election, meaning that the voters of the constituent members of the combined authority can remove the mayor from power if they do not feel that he or she is best placed to make the decisions required of the authority. The constituent members of the authority are also separately accountable to their own electorates. What this electoral accountability doesn’t do is allow for legal challenge as to whether the decisions being made by the combined authority, or its mayor, or both, are being made properly.

Prior to the 2016 Act there was already a lack of clarity for the public as to how to get concerns about correct decision-making addressed. Introducing the layer of combined authorities will not make this clearer. The government is adopting a “no wrong door” policy meaning that whichever door a complainant knocks on, their concerns will be directed to the relevant regulator or oversight body. This may well be the easiest way to ensure that members of the public don’t need to understand the inner workings of local government but it may make it harder for blame to be apportioned, where that is the right thing to do.

The deals that the combined authorities are making (and will continue to make) with central government are quite broad brush. The documents set out overarching objectives, targets for housing or increases in skills and desires to work collaboratively with central government to improve skills shortages, for example. Arguably, they are covering such wide ranging subjects and looking at such long terms plans that it is impossible to hone in on the finer detail. One of the perceived weaknesses of the current devolution regime is the lack of a specified governance structure that has been tested for clarity and robustness.

The 2016 Act does not set out any structures in the way that the Local Government Acts 1972 and 2000 do for local authorities, for example. There is a requirement to have constitutional documents but no description of what these should look like or contain as a minimum. There is no detail around how the constituent members deal with their dual role as the local authority of their area and part of the combined authority. The dual role will inevitably lead to real or perceived conflicts of interest as it will not always be possible for elected members of a local authority to agree to a combined authority decision that may, for example, move development out of that local authority area to another constituent member.

Combined authorities will need to ensure that they are starting with a foundation of strong governance. In our latest thought leadership report on devolution, Our changing state: the realities of austerity and devolution it is suggested that, as a minimum, they should consider the following for their constitutional documents:

• be clear about the limits of the powers of the mayor as opposed to those of the authority;
• the extent to which any decisions of the authority require anything beyond a majority vote;
• clarity as to how far the authority can go to “co-opt” or otherwise involve non-voting representatives of stakeholder organisations;
• when and how will the authority consult on issues; and
• where complaints should be directed.

The drive for devolution is currently strong at all levels of public authority but the real goal is to be able to get into the detail with the confidence that decisions will be made properly. In that respect, a lot of the work has only just begun.

Anja Beriro is an associate in the Government & Infrastructure Team at public sector law firm Browne Jacobson LLP. Anja can be contacted on 0115 976 6589 or This email address is being protected from spambots. You need JavaScript enabled to view it..