Extremism, social division and best value

Graeme Creer questions the Communities Secretary's proposed use of the best value statutory guidance to make it clear that councils should not fund extremist organisations.

Eric Pickles has issued a consultation paper called Revised Best Value Statutory Guidance … (for England). Consultation closed on 20 March. It proposes three changes to the current guidance: a reference to the Public Services (Social Value) Act 2012; an exhortation to help small and medium firms by avoiding “gold plating the Equality Act 2010”; and “Councils should not give grants to organisations which promote extremism or division in society.” A footnote adds: “Extremism is vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas.”

This will be statutory guidance under section 26 of the Local Government Act 1999. That means that local authorities must have regard to it, and ought not to depart from it unless they are satisfied that there is sound justification. They cannot just beg to differ. In the current climate, though, most people will think that this is good advice. No one could reasonably support local authorities funding organisations which call for the death of servicemen and women. On the other hand, it is all rather open-ended. The list of “fundamental British values” is not exhaustive, so there may be others as yet unspecified and more controversial, and the guidance seems to prohibit grants to bodies which do not promote extremism but which do promote “division in society”, whatever that may mean. A debate about which publicly funded organisations are socially divisive would be rather interesting. And, of course, there used to be something called localism.

But what is this advice doing here? “Best value” was the New Labour government’s escape route from compulsory competitive tendering, a statutory obligation to “make arrangements to secure continuous improvement in the way in which [the authority’s] functions are exercised, having regard to a combination of economy, efficiency and effectiveness.” It involved rigorous self-examination, market testing and performance management. The guidance was long and detailed. The 2012 revision swept all that away, replacing it with a single page about consultation and not passing on spending cuts to the voluntary sector.

Not giving grants to organisations which promote extremism or social division is nothing much to do with continuous improvement, economy, efficiency and effectiveness, unless perhaps there is a strange argument that it is “inefficient” – a waste of money rather than downright wrong.

There is a legal principle that statutory powers can only be used for the purpose for which they were given by Parliament, and that otherwise the courts can intervene. In the 1980s, Leicester City Council discovered that they could not ban the Leicester rugby club second team from using its recreation ground because the club refused to condemn the England tour to apartheid South Africa, the London Borough of Lewisham could not refuse to buy Shell’s products to pressurise it to disengage from the same regime, and the London Borough of Ealing and Derbyshire County Council found that, however much they disliked News International’s approach to industrial relations, they could not refuse to buy and display their newspapers, or decline to advertise vacancies in them.

More recently, Worcester City Council and the London Borough of Barnet declared conservation areas in order to prevent the demolition of a cricket pavilion and a monastery, respectively, which the Secretary of State had decided should not be listed.  Both decisions were quashed. Blackpool Council could not refuse to renew the office lease of a firm of solicitors which it thought was “farming” tripping claims, and Barnet could not fix its residents’ parking charges in order to produce a surplus in the parking account.

So, is Mr Pickles perhaps proposing to use his power to issue best value guidance for a purpose which is outside what Parliament had in mind? This is a very sensitive subject, so it is possible that the consultees – the best value authorities and the Local Government Association – will not challenge the advice. But it must be a matter of concern if the Secretary of State is trying inappropriately to hang this instruction on best value, because he has no general power to tell local authorities what to do or not to do.

Graeme Creer is a consultant at Weightmans. He can be contacted on 0151 243 9834 or This email address is being protected from spambots. You need JavaScript enabled to view it..