The Tories’ secret plans for the end of parliamentary sovereignty
In the last two posts I’ve covered the Conservative-led Local Government Association’s draft ‘General Powers of Competence’ bill, which will give local authorities carte blanche to do whatever they want, irrespective of the effect on their local populations, and irrespective of current statutory duties imposed upon them.
My focus has been on how this is a deliberate, underhand preparation for the whole sale destruction of public services provided by local authorities, along the lines proposed by Barnet ‘Easy Jet’ Council, but not yet possible under current law.
In this final post in the series, I want to focus on the wider constitutional implications of the enactment of this proposed legislation.
The implications for British democracy as we know it are huge.
As I explained in the first post, the LGA’s draft bill is modeled closely on the provisions set out in the Human Rights Act 1998. The most controversial aspect of the latter legislation was that it was seen as a way of handing over legislative power to Brussels, as it aimed to “give further effect” in UK law to the rights contained in the European Convention on Human Rights.
By and large though, the Human Rights legislation has been ‘passive’ in that it is something against which other primary and secondary legislation is measured.
The proposed General Powers of Competence legislation is quite different in this respect, and this is why it is so shocking to see the draft bill so closely modelled on the Human Rights legislation. The proposed bill, if enacted, will empower local authorities to undertake all kinds of actions which are out of keeping with current legislation, with no sanction whatsoever other than a wholly ineffectual ‘declaration of incompatibility’.
The legislation, in one fell swoop, will have a greater impact on parliamentary sovereignty than the Human Rights Act could ever have, because local authorities will be in a position to ignore the express provisions set down for it by parliament. Instead of parliamentary powers being lost to Brussels, they will be lost to town halls up and down the land, and with huge consequence for the very people parliamentary legislation has been enacted to protect.
This is not to say that the devolution of real power to local authorities is of itself a bad thing. Nor is it to say that I am in favour of the doctrine of parliamentary sovereignty simply because it is the (unwritten) constitutional norm. I would love to see real powers devolved to a local level, and for the UK governance in general become more decentralised, while at the same time becoming more democratically legitimate through the absorption under elected local authority control of all those public service functions which have been removed, especially utilities and the health service.
But this secretive process by the LGA, in cahoots with the Tory leadership, is not the way to do it.
If we are to move towards a situation where local authority elections really do make a fundamental difference for the way a local authority is governed, then there needs to be a proper public debate.
It might even be debate Power 2010 would want to participate in, because it really would be about fundamental shifts in how power is exercised in the UK. As it is, I think it’s unlikely they’ve even noticed this draft bill, let alone its ramification, so busy have they been.
There should be a proper opportunity for political parties and activists to come to terms with the changed locus of power, with the consequent need to select to best candidates for local office rather than seeing council membership of the preserve of either the MP wannabee or the middle-aged, parochial dullard/worthy.
At the moment, the Conservatives are seeking to sneak through a wholesale change in the powers of local authorities for the narrow political purpose of massively reducing public services, or making them available only to those who can pay.
This cynical move by the Tories masks a much greater constitutional question, which they would rather we didn’t ask until it is too late.
I’m not seeing it. When you say that there’s “no sanction” for councils that cut services, you’re not counting the fact that councillors have to stand for election.
You seem to be against this not because of the principles enshrined in the legislation, but because of the context in which it will be implemented (when the Tories are at a high watermark in local government and Labour at a historically low ebb). But this context will probably change soon; the Tories will begin losing councillors and councils the moment Dave gets into No. 10, and it will be Labour and Lib Dem councils empowered to exercise ‘general competence’. Now, I confess to not having read the legislation, but I can’t see anything in your posts that suggests that they will be prevented from running them on a higher tax, higher service level approach.
The thing is, I suspect that some Tories really do believe in letting councils do whatever they like, because they believe that EasyCouncils will ultimately be both popular and successful. They may be right or wrong about that, but the battle for those who disagree is to win power locally and demonstrate otherwise. Winning local councils is, in the grand scheme of things, not as hard as winning general elections – the Lib Dems have done it over the last 20 years with far fewer resources and backing from unions, donors or other levels of government, so I expect that there will be plenty of opportunities for left-wing councils to form and to deliver a radically different approach to that which the Tories envisage. If these new powers shield them from central government interference, surely so much the better? Beyond that point, it’s up to the voters to choose.
(I appreciate that I may simply have misapprehended your point, but I’ve read all of your posts on this and if there is something deep, dark and evil about the proposed legislation, I’m none the wiser as to what it is, beyond the timing and manner of its introduction).
Rob @1:
I don’t blame you for not reading the bill, though at just 11 pages it is startlingy short, so it may be worth it. The important sections only cover about 5 pages.
Yes, you make a very decent point about the sanction being elections. I hadn’t picked up this point in the OPs as I wanted to keep them shortish, but I was anticpating it as a comeback, not least because Don Paskini made the same point when I first raised the issue in September. See http://thoughcowardsflinch.com/2009/09/04/a-dismal-prospect-for-local-government-the-local-the-logic-the-legal-the-left/#comment-2351
However, with respect, I think this is an overly idealistic way of looking at it. Yes, I and Labour councillors up and down the land will use the way in which the legislation is used to implement massive cuts as a tool to campaign against the Tories, and yes we will win councils back all over the place, but by then the damage will be largely done.
What the proposed legislation does is, by giving it superiority over existing legislation setting out what councils should do for its citizens (see Simply Wondered’s useful comment on the previous thread about this), will be to ensure that within one parliament (by 2015 set out in the draft bill) that the legislation which does conflict with council’s new powers will be changed to reflect the defacto legislative norms put in place by councills. This will mean a whole raft of legislation (e.g. Food Standards, pollution, equality impact assessment homelessness, Environmental Health and so on ad nauseam) will be removed from the statute book, and is not readily replaceable. No winning back of councils is going to change that, even if some Labour and other councils do prefer to continue to provide services in keeping with the now ex-duties. Some of these statutory duties imposed by parliament may at times seem a bit overkill, but there is sound reasoning behind a lot of it, developed over a very long period. The way process may pan out, though, is that a ‘path dependency’ develops whereby if no such statutory services (e.g. care services) to people who have less of a policy voice are provided over a four/five year period, then the lack of such provision becomes a political norm in a media environment hostile to any rise in council expenditure however justified in human terms. In the end, but not that far in the future, we could end up with a US-style system of health care transposed onto the UK’s social care system, and while it’s permissable to move towards that if that is done through real democratic debate, it isn’t in my view to push us towards it through the back door like this; you’ve accepted yourself that the ‘timing and manner’ is open to question, and I suggest that this is actually very important to the whole issue.
The extent to which the law is implementable is of course a different matter; Simply Wondered express doubt about that, but I am worknig on the basis that it will be implemented as currently drafted.
Isn’t it also true that Labour councils under a Tory government will still be able to run additional services under the current “well being” legislation – they will no doubt be made to account for their spending, but will be able to justify it on the basis of “well being” for their constituents. As you’ve already said, this new legislation has been proposed as a result of the High Court’s refusal to allow councils to cut costs on the argument of “well being”.
The current legislation is weighted in favour of providing additional services, while the legislation on the table would create vast differences in taxation and service levels between local councils, as well as increasing turnover of the public sector workforce as councils change hands.
This could easily lead to what occurs in some parts of Italy, with the richest citizens moving to areas which provide few services for little taxation, which in turn takes away the local tax-base for other councils to fund social schemes, free leisure facilities, public transport, etc. for those less well-off. I, for one, don’t fancy that prospect at all.
The other thing which is pernicious about this legislation is that raising additional revenue is expressly ruled out – so it is tilted so that you can cut services under the powers of competence, or you can introduce new services, but you can’t raise the money to pay for them. This is a rather one sided approach to localism.
Yes, this is all so secret that it was impossible to find anything on the Conservative website even mentioning it
http://www.conservatives.com/News/News_stories/2009/02/Its_time_to_transfer_power_from_the_central_state_to_local_people.aspx
Dan @4: Good point, not sure how i managed to miss that out.
Richard @5: The piece you refer to makes no mention of the proposed legislation. Not sure what point you’re trying to make.
Really useful series of articles, thanks for pointing up the Tory plans. But it’s not correct to talk of the Human Rights Act as ‘a way of handing over legislative power to Brussels’. The European Convention on Human Rights, on which the HRA was based, is not EU legislation, but a Council of Europe treaty. The COE and the European Court of Human Rights are based in Strasburg, not Brussels. It’s also misleading to say that the HRA handed over legislative power (even to Strasburg): if anything did that, it was the European Convention, when we signed it over 50 years ago. The HRA simply brought the rights included in that treaty into domestic law – and incidentally, gave the courts no powers to change existing legislation, merely to declare it ‘incompatible’ with the HRA (or ECHR).
Personally I find nothing wrong in international human rights treaties which attempt to force state signatories to adapt their legislation in order to ensure respect for human rights.
Ellie
Thanks for this. Yes, I know the HRA links back to the convention. I should really have put the bit you quote in inverted commas, as it was supposed to reflect how other people (the right) see the HRA as being to all that is supposed to be bad about Brussels, rather than the actuality of the HRA.
Nor do I have a problem with the concept of universal human rights. Unfortunately, lots of people do (when it’s not theirs that are being abused).
Restructuring Parliament into a plc could be much more difficult than Cameron thinks,because the importance of Parliamentary Sovereignty is as obvious as Cameron’s skill at jumping on band wagons; the baying mobs think Parliament is stuffed with crooks so Cameron thinks the same, and that’s what it’s all about,expenses.
Instead of dragging MPs through the streets of shame, there should have been an amnesty because there was a clear case misunderstanding, and besides, Parliament pay and expenses are nothing compared to private enterprises’.
It’s easy to say MPs should not be above the law,but it’s not that simple because an MP’s first duty is to be a sanctuary for his constituents when the media and legal wolves at snapping at their heels, and this does mean being above the law.
If Parliament loses it’s sovereignty then what happens to the Queen.The Tory party will protect sovereignty because their duty has snd always will be to the Monarch and not the prime minister.
Cameron should continue focusing his right wing policies on the common folk and leave Parliament alone. For more comment see Jeremy Smyles blog; http://torypartyflushed.blogspot.com