Written evidence from Professor Colin Copus (EDE 14)
Public Administration and Constitutional Affairs Committee
The Evolution of Devolution: English Devolution
The paper examines the asymmetrical approach to devolution within the UK and the impact of that asymmetry on the governance of England. It explores the distinction between devolution to England and devolution within England and the powers and functions that can be devolved to local government and those which require an all-England settlement. By drawing on international examples the paper will explore how the constitutional and structural arrangements across the UK and within and to England could be reformed and developed to provide people, across England, with a meaningful influence over governance at all levels. In the evidence presented the paper draws on recent research conducted by the author on devolution and on other sources of devolution data. The paper is set within the context of the government’s ‘levelling up’ agenda and how devolution, within and too England, can support that agenda.
The next section contains an executive summary of the main points. The third section explores the current approaches to devolution within England and how devolution can strengthen local government, constitutionally as a governing institution, as devolution has so far focused on combined authorities. The fourth section explores the constitutional asymmetry created, across the UK, by the current nation-based devolution process from which England has not been included.
The final section will draw together the constitutional lessons for further devolution.
Devolution within England
Devolution ‘to’ England
Three main issues are explored in this section:
The principles of devolution
When it comes to local and sub-national government within England, the current focus of the government’s devolution policies is predicated on economic renewal and growth as part of the ‘levelling up’ agenda and is underpinned by an economic imperative. There has been no conversion at the centre to devolution as a fundamental principle for the redesign of the governing system within England and England remains one of the most centralised countries, certainly across Europe (see, Copus, et al 2017). An effective devolution policy must shift from being a vehicle for the centre to implement policies through a legislative and structural framework for local government, to strengthening local government as a governing institution with a set of independent powers.
Devolution in England is a pale shadow of that introduced into Scotland and Wales, which has seen primary legislative power devolved from the UK parliament. By contrast England has been offered, not devolution but decentralisation and this is not a semantic point:
(see, Burns et al 1994, Pollitt, et al 1998, Agranoff 2004, Pollitt, 2005, Devas and Delay, 2006, Trench 2007).
England has experienced decentralisation not devolution. It is necessary to highlight this point to recognise how far England has been relegated, across the UK, in the devolution stakes.
To rectify this situation within England, a new set of underlying principles are required for a fundamental restructure of the current constitutional arrangements if devolution is to be more than another means by which the centre implements its polices.
The author’s recent research indicates that a series of questions must be addressed as the basis for devolving, rather than decentralising, to local. The questions reflect a governing system where power and decision-making is genuinely and generally shared by the centre and local government and would be asked in relation to any legislative proposals, as follows:
Added to these questions, the following tests for a national as opposed to a local approach should also be considered:
(Copus, Roberts and Wall 2017:152)
A new set of constitutional operating principles which aim at devolution of power (and responsibility) from the centre to the localities must be embedded in cultural change at the centre. The depth of penetration of central control over local government indicates the difficulties of achieving that cultural change. Those difficulties were highlighted by a 2013 report of the House of Commons Political and Constitutional Reform Committee which noted a comment by then Minister for Decentralisation, Greg Clarke, that there were ‘at least 1,293 [statutory] duties imposed’ on every council’ (TSO, 2013:8). The report stated: ‘Such imposition of duties by the centre on local government is against the principles and practices of localism’ and for localism read devolution.
The 2013 report contained an appendix which set out a codified relationship between central and local government and such a code, with devolution as its operating principle, needs to be enshrined in legislation, with a constitutional lock (see TSO 2013:33). The draft code is attached as an appendix to this submission.
Section one of the Localism Act 2011 provided local government with the General Power of Competence which gave councils the power to do anything an individual can do provided it is not prohibited by other legislation. But the Act did not repeal any existing duties and contained some 140 reserve powers enabling the secretary of state to amend or repeal any of the Act’s provisions.
A stumbling block to devolution within England is the unwillingness of Westminster and Whitehall to relinquish power rather than functions and that issue is exposed in the ‘deal’ making approach to devolution.
Negotiated deals between the localities and the centre display how England has experienced decentralisation rather than devolution and how it is the centre that dictates the flow of responsibilities, tasks and budgets when such deals are struck.
The deal making process and deal contents, so far, have two striking features:
There is little to suggest much has changed since Wall and Vilela Bessa’s 2016 research
Analysis of the content of the existing deals shows that they reflect a limited range of functions or responsibilities. There is no decision-making power or financial autonomy (new taxation powers or new types of taxation freedoms) for the combined authorities that match that devolved to Scotland and Wales.
By contrast a success of devolution, within England, so far has been its very asymmetry; that is different combinations of councils have cast deals that suit their own specific requirements and local circumstances and that should be an underlying principle of devolution within England (but not across the UK, see next section).
Research published by De Montfort University in 2017 has shown two contradictory calls from councillors when it comes to asymmetry or the need for a framework for devolution:
Such contradictions uncovered by the research are unsurprising as they reflect local government’s position of uncertainty when negotiating with the centre: calls for clarity, frameworks and regulations to avoid local government making errors, can be contrasted with demands for greater freedom more local autonomy and a stronger localist approach to devolution which reflect frustration with the process so far (Copus and Wall 2017).
Consistency of devolution – the same powers, functions, tasks, being devolved to avoid asymmetry within England - is inherent in a centralist approach which seeks, above all, certainty, congruity and samness, rather than diversity, flexibility and responsiveness. Devolution must rest on the latter rather than the former. The former are qualities sought by the centre which wishes to control and seeks neatness; the latter are factors which relate to difference and local needs. There is no requirement for a national approach for devolution within England and local choice not a national framework should drive the devolution process so as to match local needs.
Aside from the economic imperative which has been the dynamic for devolution, there has been an unnecessary focus on structural change and particularly local government reorganisation. There is no need in theory or practice why devolution should be linked to local government reorganisation. England already has the largest units of local government across Europe and there is little to be gained from further increases in the size of English local government (Copus, Leach and Jones, 2020) other than to create even larger and more remote artificial entities.
The functions, tasks and responsibilities of local government are not related to size, rather to power, autonomy, constitutional protections, resources and political and managerial leadership (Denters et al, 2014, Dollery and Yamazaki 2018, Erlingsson et al, 2020). The vast amount of research on the effect of size on local government efficiency, effectiveness, cost and democracy and representation can be crystallised, thus:
(for a comprehensive listing of the literature and research see Copus, Leach and Jones, 2020)
Despite the inconsistency of the findings of independent research that links increases in council size to improvements in efficiency, effectiveness and cost reduction, the idea that bigger is better has a folk-lore like hold on some in central and local government. The stress on a structure of local government to match an economic imperative has driven the search for the ideal type of unitary councils, as exemplified in Lord Heseltine’s 2012 report. What is required however, is recognition of the strengths tiered systems offer for a flexible and responsive devolution and constitutional change (Copus, Leach, and Jones 2020).
There is no need for structural reform of local government to create an effective constitutional settlement based on devolution. Rather, what is required is a shifting down of reserved powers from the centre to councils along the lines of:
(each of these taxation powers exist with local government across the globe)
Such devolution would see local government as a financially independent governing institution responsible to its electorate and not the centre.
Without the autonomous ‘power’ for local government to tax and to legislate and to create different solutions and approaches to problems that reflect the needs of English localities, devolution within England will remain a pale shadow of that in Scotland and Wales.
It is to devolution to England the paper now turns.
England was excluded from the devolution that took place to the other nations of the UK at the end of the 1990s. England has only been offered the prospect of being divided into artificial regional areas rather than devolution of UK parliament reserved powers to the whole of England through the formation of an English Parliament with a first minister and government for England.
The absence of an English Parliament and the Barnett formulae contribute towards the current imbalance in public spending per head across the UK, as follows (See, Brien 2018):
It was the governance of England, not the rest of the UK, which suffered during the last parliament where decisions on important issues such as social care, housing, transport, policing, health and devolution were delayed while Brexit dominated proceedings.
The rest of this section explores the options for devolution to England and how central powers could be devolved rather than tasks and functions decentralised.
The idea that England should be broken into regional areas – rather than have a national voice and government – suffers from the same problem as much of English local government; that is the regions are artificial constructs covering geographical areas with which the public have little or no affinity. Indeed, seven of the nine English regions are merely points on the compass:
East of England
English administrative regions reflect ‘NUTS 1’ regions (Jenkins, 2005) and do not have any resonance within England or reflect real areas in the same way, for example, as Spanish or Italian regions. Indeed, none of the 20 Italian or 17 Spanish regions has a point of the compass in its title and each have their own flags, symbols and traditions with which people identify. There is no English equivalent of Catalonia that would justify balkanising England (see Bradbury and Mawson, 1997, Jenkins, 2005). It is the artificiality of the existing English regions that is a major flaw in the regionalist argument.
The North East of England, in a 2004 referendum, overwhelmingly rejected an elected regional government with a majority of 499,000 against an assembly, a much larger majority than that in Scotland (2014) for staying in the Union. The North East was chosen for a referendum as it was deemed to have the strongest regional identity, but this ignores the fact that identity is a multi-layered experience with local, regional, national and other identities coming into play. The author is currently preparing a research project to test the strength of local, regional and English identities and the results of that project will be made available to the committee.
If elected regions were created on the same basis of population ratio (not electorate) as Scotland with 129 MSPs for a population of 5,295m, a ratio of MSP to population of 41,000 then England would require around 1,290 regionally elected members.
Regionalisation will pit one part of England against others in a bidding war for resources which would damage and not facilitate the government’s ‘levelling up’ agenda, as resources would be unevenly distributed as the result of regional campaigns not an overview of the needs of the whole of England. It is also unlikely that the centre would devolve the same reserved, primary powers that have been granted to Scotland and Wales to regions. Regionalisation would leave England balkanised in an asymmetrical system with no voice of its own in UK governance.
The only effective way to secure devolution for England is by the same process of devolution ‘to’ England as has occurred for Scotland, Wales and Northern Ireland. That is by the creation of an English Parliament with a government and first minister. Claims of a lack of interest among the English in an English Parliament or that the English question does not need to be answered, overlook the growing resentment within England at the asymmetrical constitutional arrangement. An ICM poll conducted for ‘Power 2020’ in 2011, for example, showed that 68 per cent responded in favour of an English Parliament and 36 per cent were in favour of English independence from the UK (rising to 42 per cent among the C2 skilled working class).
It has been argued that England is too big for its own parliament but:
(to name just four other nations).
The relative size of England against the rest of the UK nations is no barrier to an English Parliament indeed, other constitutional systems manage to accommodate large and small units of government: the US with California’s 39 million people, and Wyoming with 550,000; or Belgium with Flanders (six million population), Wallonia (three million) and the Brussels region of a million citizens, for example, make the governing system work with significant size disparities.
It is not the size of a nation within a multi nation state that is the issue – it is the powers and responsibilities that are devolved that are the important factor. That is a reformed constitutional arrangement for the UK would:
The Kilbrandon Commission (1973: para. 1192) commented: ‘Any arrangement which fell short of the devolution of executive powers would do nothing to lighten the load on Parliament and the central government’ and that can only be achieved by seeing England as a nation within the UK and balancing the current asymmetrical structure. It is that asymmetry that over time will build resentment in England and threaten the existence of the UK, rather than the creation of an English parliament in a network of UK parliaments with the same powers.
England has so far experienced decentralisation of functions and task not devolution of powers and responsibilities and there is a need for genuine devolution both within and to England. A new constitutional approach is required from Westminster and Whitehall which sees local government as just that: an independent, autonomous governing entity with a set of devolved powers and a protected constitutional status.
Equally the current asymmetrical constitutional arrangement with England excluded from national devolution is unsustainable. The creation of an English parliament is needed to rebalance that asymmetry and to prevent growing resentment from undermining the governance of the UK. John Bright, the great English Quaker radical MP said in a speech in Birmingham in 1865 that ‘England is the mother of parliaments’. Devolution should mean that once again England has its own parliament.
Appendix One: (source) House of Commons Political and Constitutional Reform Committee: Prospects for codifying the relationship between central and local government Third Report of Session 2012–13
Illustrative and Consultative draft code for central and local government
We the citizens and the Government of the United Kingdom recognise all elected councils in England as free and independent bodies, separate and equal partners in the governance of this realm under Her Majesty, accountable to local people. Parliament asserts that democratically elected councils have a range of rights, freedoms and duties to secure and improve the well-being of their citizens and communities. Parliament states that elected councils have the right to carry out those duties as they judge best on any matter which is not reserved under law to the competence of some other authority, subject always to the judgment of the courts and the ultimate approval of their electors. Parliament makes plain that elected councils have equal status to elected central government and that their rights and duties shall enjoy equal protection in law.
1. The fundamental rights, freedoms and duties of councils herein are defined protected and entrenched. They may not be compromised or changed other than by the explicit consent of Parliament as authorised firstly by an elected joint committee of both Houses, and then by the approval of both Houses of Parliament as prescribed in the amendment to the 1911 Parliament Act.
2. This code embodies an agreement between central government and local councils. Councils, local government representative bodies, all ministers, government departments, MPs, civil servants, courts of law and all public agencies interacting with local government are bound by the articles within this agreement and will act in accordance with these articles.
3. The individual rights of citizens are not affected by this code and citizens may seek judicial review against any injustice or infringement of rights as now. Councils and government can seek legal adjudication should it be felt that a council, councils or central government are not acting in accordance with the code.
Article Two: Local Autonomy and Local Self-Government
1. Councils’ accountability is to local citizens.
2. Councils shall operate within the rule of law and with regard and respect to human rights legislation.
3. Councils are autonomous, democratically elected bodies which independently decide upon, administer and regulate the public affairs of and deal with all matters of concern within their boundaries which are not dealt with or attended to by other governmental bodies under law.
4. Councils operate within a framework of an irrevocable general power of competence with a full legal personality. Subject to the preamble to this code and to paragraph 3 of this Article powers rest with councils, acting in accordance with the national legal framework, to pass local measures on matters affecting the affairs and interests of their area.
Article Three: Scope of Local Government
1. The powers and responsibilities of councils may not be prescribed other than by statute subject to safeguards in Article 1.1.
2. Councils have, in addition to existing powers, full discretion to exercise their initiative with regard to any matter which is not excluded from their competence or assigned to any other authority or body.
3. Councils are to be consulted, early within the policy and decision-making processes, by the Government if it is proposing actions which will affect any council and its communities.
Article Four: Inter-Governmental Activities
1. Central and local government acting jointly shall be allowed to create inspection regimes to set and maintain service standards.
Article Five: Territorial Autonomy
1. The geographical boundary of a council can only be altered by a proposal from the council itself or from local citizens and not by any action of central government. Any locally inspired proposal for boundary changes must be constructed with the involvement of the Local Government Boundary Commission for England and within the law and subject to local approval in the area concerned.
Article Six: Council Governmental Systems
1. Local citizens through methods agreed by their councils shall have autonomy to choose their internal political decision-making systems (including,-the right to adopt a directly elected mayor and cabinet, cabinet and leader, or a committee system, or any other political decision-making arrangement). Local citizens through methods agreed by their councils can adopt any electoral system for use in council elections, after consultation and approval by local citizens.
Article Seven: Local Government Financial Integrity
1. Councils shall be financially independent of central government. Equalisation arrangements will continue as now. Equalisation will be conducted through a process independent of central government and continue to be based on the principle of ensuring fairness and balance between councils.
2. Councils may raise additional sources of income in their localities in any way they wish [subject to the rule of law and human rights legislation] if they gain the consent of their electorates.
3. Local government shall have a guaranteed share of the annual yield of income tax. This share shall be renegotiated whenever service provision responsibilities are transferred between central and local government.
4. Councils shall be able to raise any loans, bonds or other financial instruments which their credit rating allows and will be exclusively responsible for repayment. All councils shall operate “a balanced budget” so that all outgoings, including interest repayments on borrowings, shall not exceed income.
5. Central government may not cap, or in any way limit, council’s taxation powers.
Central and local government may contract with each other to pursue their own policy objectives.
6. The same financial transparency standards will apply to local and central government, alike.
Article Eight: Councils’ Right and Duty to Co-operate and Associate
1. Councils as independent legal entities are entitled, in any undertaking, to cooperate in any way with other councils, public and private bodies, any voluntary, charity or third-sector organisation, or with any financial, commercial or private enterprise.
2. Where more than one Council is responsible for services in a geographic area, these Councils shall co-operate to maximise the well-being of those within that area.
3. Councils are able to belong to any association for the protection and promotion of their common interests and to belong to an international association of any sort. Subject to the general provisions of this code councils are entitled to cooperate with councils in other countries for any matter.
Article Nine: Decision making
1. The administration of any local proposition, referendum or other local decision making process shall follow standards set by the Electoral Commission, and those responsible for the conduct of any such democratic process shall be accountable to the Electoral Commission for their performance against those standards.
Article Ten: Legal Protection of Local Government
1. Councils have the right of recourse to a judicial remedy in order to secure free exercise of their powers, and any other principles of local self-government or individual rights enshrined in law or contained within the code or evident in Human Rights legislation.
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 Colin Copus PhD, MA, ACIS, FAcSS, FRSA. Emeritus Professor of Local Politics , De Montfort University, Leicester. Visiting Professor Ghent University, Belgium