Localism Bill-on-Sea

‘Oh! I do like to be beside the seaside!’ enthused the Edwardian music hall eulogy to the holiday pleasures of the English coast.  And as the Localism Bill packed up its bucket, spade and beach tent on 20 July 2011 it will no doubt remain substantially in a state of suspended animation until Parliament resumes on 5 September 2011.

That’s not to say of course that the political wires will ice over. The game will undoubtedly go on – at least electronically – as attempts continue to persuade circles (with varying degrees of delicacy) of the benefits of being squared.

As Parliament rose (after its extra day on 20 July 2011) the Bill had just completed ten days line by line examination by the Lords in Committee. When it returns on 5 September (no doubt reinvigorated by the sea air) it is due to start report stage. So currently the Bill is what it is until it isn’t. And Royal Assent appears likely to drag on into Autumn.

After a few frissons during its passage through the Lords, the standards regime proposals remain permissive (with the consequent disconnect between this and the proposed duty to promote and maintain high standards of conduct by authority members). And although the issue has not been without discussion, as the Bill broke up for summer, the criminal sanction proposals for breach of interest regulations remain. ACSeS (the Association of Council Secretaries and Solicitors) has expressed the view that a unified code of local government conduct would be beneficial in the interests of sound ethical and corporate governance nationally and has also questioned the desirability of introducing criminal penalties for anything but the most objectively egregious member behaviour.

It was therefore pleasing that just before the Parliamentary recess, a small group of peers (Lords Newton (Con), Tope (Lib Dem) Filkin (Labour) and Bichard (Cross Bench)) led a meeting to discuss the treatment of standards in the Localism Bill. This was to discuss proposed amendments to be moved when Parliament resumes on 5 September 2011 and took on board concerns expressed by Sir Christopher Kelly, Chairman of the Committee on Standards in Public Life. The outcome was apparently to seek potential amendments to the Localism Bill with a view to provisions for a national code of conduct (to be issued through the Local Government Association if it agrees), standards committees with independent chairs and the removal of criminal sanctions. So definitely a space to be watched.

The general power of competence apparently remains on track which (if enacted) should boost authorities’ confidence in finding creative and innovative solutions within the broad bounds of reasonableness and prudence.  The measure will at the very least serve as a positive expression of the intention of Parliament to give local authorities wide powers within the law to do ‘anything that individuals generally may do’. Depending upon the circumstances, this could well be useful in any legal challenge.

Although there has been some ministerial grandstanding on bias (with one minister even suggesting at one point that the rules on bias and predetermination were in effect local government lawyers stalling the democratic process!), as noted previously, the proposals, (currently in clause 14) merely reflect the mature stage the common law had achieved. For the Court of Appeal pointed out on 1 July 2008 in Persimmon Homes Teeside Limited v. R (Kevin Paul Lewis) ([2008] EWCA Civ 746) 'clear pointers' are needed if a councillor’s ‘. . .state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision'.

The controversial mayoral chief executive and shadow mayor proposals fell by the Parliamentary wayside but many of the original governance provisions remain. These include power for the Secretary of State to require a specified local authority to hold a referendum on whether it should operate a mayor and cabinet executive. And as previously noted, there is still apparently an intention to proceed in May 2012 with elected mayor referenda for eleven cities.

The power to transfer public service functions to elected mayors (currently in clause 9HA) remains interesting since it could well be used to underpin proposed expansion of community budgeting (formerly known as total place). Elected mayors may also during their first year of office make proposals to the Secretary of State as to how the clause 9HA power should be exercised in relation to the local authority in question (clause 9HB).

Many exchanges of views on the Localism Bill (of varying degrees of fullness and frankness) have yet to unfold before (per Macbeth’s witches): ‘the hurly-burly’s done’ and ‘the battle’s lost and won’.  But despite the differing degrees of stridency surrounding it, the Bill remains a substantial and culture-changing measure and it will be interesting to watch its progress when Parliament resumes. For whatever you may think of it, even Macbeth would be hard-pressed to describe the Bill as: ‘. . . full of sound and fury, Signifying nothing.’

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.

© Nicholas Dobson  July 2011