Rob Hann, Sharpe Pritchard’s Head of local government, takes a look at the new proposals under the Government’s Levelling Up White Paper to facilitate devolution to remaining regions of local government in England which are currently without a Mayoral Combined Authority.
In my recent article (Levelling up – A new opportunity for further devolution in England? (localgovernmentlawyer.co.uk)) published before the levelling up white paper (‘the LU White Paper’) finally surfaced from Michael Gove’s (now renamed) Department of Levelling up, Housing and Communities, on the 2nd February 2022, I speculated as to what type of new institutions we might see being rolled out across England to encourage devolution across the remaining clutch of English Regions which currently do not have mayoral combined authorities.
The LU White Paper now heralds what it calls “A clear and consistent set of devolution pathways for places, enabling them to widen and deepen their devolved powers subject to meeting certain pre-conditions”.
Given the role of the current Prime Minister, Boris Johnson as a former London Mayor, and the fact that previous Conservative administrations have consistently promoted the mayoral combined authority model over other options, it comes as no surprise that the Government’s preferred model of devolution remains a combined authority with a directly elected mayor. The LU White paper does purport to leave the choice up to local councils to determine which of three models for greater devolution they want to choose. However, the government also make clear that choices have consequences, one of them being that if the preferred (mayoral CA) option isn’t selected, only a more watered-down form of devolution will be available.
To be more precise, the LU White Paper sets out what it calls three ‘levels’ comprising its new devolution framework consisting as follows:
- Level 3 – A single institution or County Council with a directly elected mayor (DEM), across a Functional Economic Area (‘FEA’) or whole county area;
- Level 2 – A single institution or County Council without a DEM, across a FEA or whole county area;
- Level 1 – Local authorities working together across a FEA or whole county area e.g. through a joint committee
As a broad and high-level steer, the LU White Paper provides at Table 2.3 the powers and functions which are envisaged to be devolved to each type of institution, with Level 3 bodies (mayoral CA’s or Counties) being able to secure a ‘clean-sweep’ of the devolved powers on offer.
It is interesting that the Government base the case for change on the fact that “…at present, there is a complex patchwork of local administrative bodies across the UK, which often overlap and are difficult to navigate”. To demonstrate that point the LU White Paper points out that In England, local governance is split across county councils, district councils, unitary authorities and London borough councils and, at the sub-regional level, mayoral and non-mayoral combined authorities and the Greater London Authority (GLA). Local Enterprise Partnerships (LEPs) and Pan-Regional Partnerships (PRPs) also have some responsibilities for economic strategy. Subnational Transport Bodies (STBs) develop regional transport strategies. These are often overlaid with divergent geographical boundaries for public service delivery, such as police and health.
The government say the result is fragmentation and administrative complexity.
Whilst, undoubtedly, a strong case could be made for re-organisation of some local government administrate areas in order to facilitate and encourage greater cross-border partnership working, there doesn’t seem to be much in these proposals that will help to simplify the English local government landscape.
How will creating three new different ‘levels’ of devolved bodies reduce complexity created by the existing heady mix of public bodies? Is there perhaps an unwritten and unspoken agenda at work here from the Government’s perspective that the creation of a new ‘top tier’ of Pan-regional CA’s or County Councils will eventually, at some stage, create superfluous districts or unitaries within those boundaries that could, in the fullness of time, be abolished?
How will the creation of many more mayoral combined authorities within the English regions impact on the effectiveness of the existing mayors? One of the big advantages mooted in the LU White Paper for the mayoral model is how the current clutch of relatively few Metro-Mayors have been able to articulate the needs of their individual regions to secure additional funding and support. However, the more regional Mayors that are created, the more difficult it will be to get individual mayoral voices heard at the centre and the more competition is created for already scarce resources to help areas blighted by the effects of the Covid 19 Pandemic.
The LU White Paper mentions that devolution deals conducted to date have used a deal-based approach. They are negotiated bi-laterally, and each deal is bespoke, with varying powers devolved and varying settlements between the executive authority of the Mayor versus the CA. However, what this also means is that it makes it very difficult for third parties dealing with a combined authority, such as developers, service providers, investors and potential funders involved in (for example) major infrastructure projects, to determine what precise legal powers and functions individual Mayors and Combined Authorities actually have at any given time and whether and how those powers and functions are shared with anyone else. If greater transparency and consistency over powers and functions is not addressed by Government going forward, at worst it could lead to an unwelcome crisis of confidence for third parties dealing with Mayoral CA’s, especially if vires issues begin to surface again and create similar problems that were all too commonplace in the 1990’s.
Clarity over what statutory functions a public body can or cannot perform lies at the core of effective public administration and leaving this crucial issue to be determined by individual agreements between central government and an ever-growing and diverse cadre of new regional public bodies with their own special and different legislation could lead to more confusion and complexity rather than less - precisely the opposite to what is needed if local government is to take a leading role in helping to rebuild economies now the worst effects of the pandemic appear to be receding.
Rob Hann is Head of Local Government at Sharpe Pritchard LLP.
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