Following the publication of the new English Devolution and Community Empowerment Bill, Amardeep Gill and Paul McDermott look at the different aspects and how it could affect regional power.
Overview
- One of the Bill's key objective is to replace the current patchwork of bespoke frameworks and orders for combined authorities with a more comprehensive framework for new strategic authorities and unitary councils to operate in. To that extent its ambition is closer to the wholesale local government reforms introduced under the 1972 Local Government Act than anything since then.
- Proposals for the new strategic authorities offer an exciting opportunity for both urban and rural areas to make significant decisions about their regions rather than those decisions being taken in Whitehall. Key areas being devolved include skills and employment, economic development, transport and infrastructure and some aspects of health and well-being.
- The Bill's ambition is to standardise the devolution framework for the new strategic authorities and this comprehensive approach should at least add some transparency to an otherwise opaque variety of strategic authority governance models and functions
- The Bill adds to the Secretary of State's (SoS) existing power to require a move from two-tier to unitary status to also giving her a similar power to require the reorganisation of unitary authorities. In view of the financial strain within the sector we suspect this proposed change may be a necessary reform, although we appreciate that the proposed council reforms in two-tier areas will not be welcomed everywhere.
Strategic Authorities
The Bill mainstreams Combined Authorities (CA) into much existing local government legislation and provides a streamlined process to create new local and strategic authorities (SAs), it provides a more consistent and uniformed framework for SAs to operate in and it also enables the SoS to delegate new functions and budgets to SAs without secondary legislation. The Bill also gives the SoS a reserve power to impose changes which the White Paper indicated would be used if local areas could not agree changes. Areas which are still unable to agree combined or local authority reform may want to 'double down' on achieving a local consensus or ultimately risk the SoS, albeit reluctantly, imposing a solution from Whitehall.
The Bill confirms that the new strategic authorities are:
- Combined Authorities,
- Combined County Authorities, and
- The Greater London Authority.
The Bill also introduces three SA statuses being:
- Foundation (with the least devolution),
- Mayoral (the default form of new SAs), and
- Established Mayoral (SA's with the most devolution).
Each status affects the nature of the functions and size of related budgets being devolved. The Bill enables areas to progress to a higher status and it appears to encourage areas to do so over time. The Bill designates a number of CAs as Established Mayoral SAs, these enjoy more devolution.
SA Competences
Clause 2 of the Bill sets out seven areas of competence for SAs which reflects the functions devolved to existing CAs. There is no indication that Established SAs will have any other functions withdrawn from them and we suspect that the SoS will make relevant orders to preserving those. The seven competences are:
- transport and local infrastructure;
- skills and employment support;
- housing and strategic planning;
- economic development and regeneration;
- the environment and climate change;
- health, well-being and public service reform; and
- public safety.
Though all SAs will have these competences each status will affect the extent of its devolved functions and budgets within the seven competences. So even though all SAs of all statuses will be competent for skills and employment support, they will differ in what they are empowered to do.
Mainstreaming SAs
The White Paper promised to introduce a coherent and clear structure for the new strategic authorities, replacing the bespoke orders and arrangements made for the existing combined authorities and the Bill does this by:
- mainstreaming SAs by amending existing local government legislation to specifically include them where relevant – for instance setting out SA borrowing functions in the LGA 2003 and allowing mayoral precepts to be levied for all of the SA's functions;
- creating a statutory framework of SA competences and statuses;
- codifying powers exercised by existing SAs and amending legislation according – examples extending similar planning powers exercised by the Mayor of London to mayors of other SAs;
- giving the SoS powers to order the formation of new SAs and devolve additional functions to them.
The Bill contains a significant number of amendments to the local authority statutory framework to ensure that SAs are included as a natural part of the framework rather than relying on specific statutory instruments and orders, as was the case in the past. Primary legislation, for instance, will mainstream CA's ability to borrow (though for some functions that requires Secretary of State consent) and it extends the general power to combined authorities, though non-mayoral SA will only be able to use that power for the purpose of economic development or regeneration.
SA Decision making framework
The White Paper's promise of greater consistency is also reflected in the Bill's clauses on combined authority decision making. The Bill's default position is in a mayoral CA's decisions will be made by simple majority of voting members though that majority must include the mayor (or her deputy). This effectively gives the mayor a veto. In non-mayoral SAs decisions will be made by a simple majority of members. For existing CAs this will replace their current and varied decision-making arrangements.
Clarity is also provided about powers conferred to mayors under legislation or regulations and it is clear that these are only exercisable by the mayor, though the mayor may delegate authority for related decisions to a deputy, members, or officers of the CA.
The Bill enables mayors to appoint commissioners (up to a maximum of 7) to lead on a CA's competences. The Bill also will allow a mayor to devolve mayoral functions to these officers. This enables SAs to develop the capacity and expertise to take forward their new responsibilities.
Greater London Authority
The White Paper posed itself the question about what to do with Greater London as the GLA is based on its own unique legislation, The Bill leaves the GLA's structures as they are. The GLA is designated as an Establish Mayoral SA, which puts it in the same category as West Midlands and Greater Manchester CAs.
What the Bill does do is allow the Secretary of State to devolve additional functions to the GLA without having to amend primary legislation and it also gives her the power to amend GLA existing legislation where that may conflict with any additional devolved functions or responsibilities.
The Bill's explanatory note is clear that the GLA and other SAs are likely to experience similar devolution journeys, though the GLA's governance and functions are not directly affected by the Bill's reforms to other SAs.
Wider Local Government Reform
Unitary Authorities
The Bill makes few amendments in order to mandate unitary authorities. This is mainly because Part 1 of Local Government and Public Involvement in Health Act 2007 (2007 Act) sets out a detailed process for enabling and implementing local government reorganisation which includes powers for the SoS to invite or require proposals for reorganisation. Schedule 24 of the Bill extends this by enabling the SoS to invite or direct existing unitary authorities to submit proposals to merge or otherwise reorganise. The Bill's commentary is that change is not merely limited to two tier areas. If a unitary is considered to be failing or for other reasons is not reaching its "full potential" then such a unitary council may be directed to propose a suitable reorganisation.
Leader and Cabinet model
After more than 20 years of trialling different governance models the default form of council governance will be the leader and cabinet model. The councils with elected mayors may retain those arrangements, though other councils will no longer be able to adopt a mayoral system. However, the Bill mandates those councils operating committee governance to adopt a leader and cabinet model.
The Bill imposes a duty on councils to make appropriate arrangements to secure effective neighbourhood governance. This would require them to establish and maintain structures for the governance of neighbourhood areas and to consider the number, membership and funding of those structures. We suspect this may be driven by concern that councils with larger areas and populations should not become disconnected from communities and neighbourhoods within.
