In the United Kingdom, an essential backdrop for any study of local government1is provided by three principal features of the UK constitutional order. Although formally described as unitary, the United Kingdom is often also described as a «union state»– a term which captures the idea that it is made up of four countries2– England, Scotland, Wales and Northern Ireland – which retain territorial, legal and cultural distinctions of their own.
For local government, this has meant that, even though supreme legislative authority in the United Kingdom is retained by the Westminster Parliament in London, that Parliament has frequently made separate legislative provision (especially for the structure of local government) for the different countries (distinguishing, in particular, between combined provision for England and Wales on the one hand and then separate provision for each of Scotland and Northern Ireland). Secondly, the defining characteristic of the UK constitution is that it is «unwritten». There is no single ultimate documentary source which defines all institutions and procedures. There is no constitutional court. There is no constitutional provision (and certainly nothing which is entrenched against parliamentary amendment) for local government.
And, thirdly, since 1999, a pattern of asymmetric arrangements for devolution has been instituted in respect of Scotland, Wales, Northern Ireland, and, to
an extent, Greater London.3This has meant, in particular, that legislative competence in respect of local government in Scotland has almost entirely passed to the Scottish Parliament4and executive competence has passed to the Scottish Government and to the Welsh Assembly Government.
Within this general constitutional framework, the period since the late 19th century has seen the emergence of democratic local government, structured somewhat differently in, on the one hand, England and Wales and, on the other hand, in Scotland – initially distinguishing between rural areas (with the principal unit, the county) and urban areas (cities, boroughs (burghs)). During the twentieth century, there were significant reorganisations of local government, producing the patterns of local authorities described below. In comparative European terms, the United Kingdom may be grouped with those other northern/Scandinavian countries in having local authorities with relatively large populations5and with a relatively large range of competences.
The early years of the 21st century have seen UK local government having to respond to new threats to its autonomy, especially in the light of the global financial crisis and changing conceptions of the proper role of local government vis-à-vis local service provision by other (sometimes private) means. In the closing years of the Labour government (themselves a period of substantial legislative activity6) the constitutional position of English local government was substantially reviewed by the Communities and Local Government Committee of the House of Commons.7In 2010, the incoming Conservative and Liberal Democrat Coalition government had a commitment (for England) to «promote the radical devolution of power and greater financial autonomy to local government and community groups»8and this has been given expression in the substantial Localism Bill currently proceeding through the UK Parliament. After the elections to the Scottish Parliament and the National Assembly for Wales in May 2011, new local government initiatives are to take place in those parts of the country.
As mentioned, the United Kingdom is a country which, in contrast with many others, has shown considerable flexibility over time with the structuring of its systems of local government. In particular, there has been no continuing protection afforded to the smallest authorities in the way that other systems have preserved the existence of their smallest communes or municipalities. Local sensitivities about levels of local government at the parish and village level were overridden9in the early 20th century and the centuries-old allegiance to counties has, in most areas, also been swept away.
There has been a declared preference for an attachment to ideas of efficiency and economy which has, in successive reorganisations, generally produced reforms in the direction of larger, rather than smaller, authorities but with experimentation, over time, with both all-purpose, single-tier systems and, on the other hand, two-tier systems. The history of all the reorganisations of the 20th century cannot be told here but the outcomes, in the shape of the current structures, need to be briefly described and, because of their greater simplicity, it is easiest to start with Scotland and Wales.10In Scotland, replacing, from 1996, an earlier system of (largely) two-tier local government (of regional and district councils), there are now 32 councils which are all-purpose authorities, save that councils combine with others to form joint boards in eight areas with responsibilities for (a) police and (b) fire and rescue services. The adoption of a single pattern of authorities across Scotland means that some have a predominantly urban aspect (including the councils for the four biggest cities) whilst others are predominantly rural. Wales, again replacing earlier two-tier local government, has a similar pattern of all-purpose authorities. There are 22 such councils which, as in Scotland, are sometimes mainly urban but, elsewhere, mainly rural. Fire and police services are again delivered on a joint basis.
The outcome of nearly a century of reforms in England has been more complex. Leaving London on one side,11England presents a picture which divides the country into three types of provision.
First, there are six metropolitan areas in which, until 1986, there were two-tier systems, but, since then, there have been (in total 36) all-purpose metropolitan councils. Secondly, in many of the remaining areas of the country, there
are «unitary» all-purpose authorities which have been formed12through the merger of authorities in previously two-tier areas. There are 55 such unitary authorities. And, thirdly, there are other non-metropolitan areas where two-tier government has been retained.13There are altogether 27 such upper-tier «shire county» local authorities and, within their areas, a total of 201 lower-tier district councils. It will be evident that, London and the metropolitan areas apart, there are, as in Scotland and Wales, no clear differentiations between urban and rural areas – plainly the unitary authorities and the district councils may include both – although the shire county upper-tier authorities may have a predominantly rural character.
As already indicated, in the absence of a written constitution, there can be no formal overarching «protection» for, or entrenchment of, local government in the UK constitutional order. Historically, however, democratic local government has emerged as a strong constitutional characteristic which has, in practice, been largely recognised and given political and legislative protection by successive UK governments and legislatures, even if, in most periods, there has been friction between central governments and local authorities over issues such as the funding of local government. Whether or not always recognised in the practice of central governments, the idea of a central-local «partnership» has been prominent in their rhetoric.
Legislative competence for local government has been substantially affected, since 1999, by the devolution arrangements made by Acts of the UK Parliament passed in 1998. Thus, for England and Wales, legislative competence remains with the UK Parliament and it is in Acts of that Parliament that all primary legislation affecting the structure of local government, together with its powers and its financing, is to be found, although provision has already been made for the future transfer of this competence in respect of Wales to the National Assembly for Wales. The general tradition in the United Kingdom has been for legislation making provision for the general structure of local government and for the composition and operation of local authorities to be made in Local Government Acts and the current legislation remains the Local Government Act 1972 (the «1972 Act»)(as heavily amended subsequently). That Act also made outline provision for the competences of local authorities and for their financing.
However, it has also been the UK tradition to embody most substantive provision in respect of local authority functions in separate (sectoral) legisla-
tion. The functions of local authorities are specified in detailed Acts of Parliament (and, in some measure, in delegated legislation made by ministers under those Acts) related to different areas of activity. Thus, the Education Act 1996, the Town and Country Planning Act 1990, the Local Authority Social Services Act 1970, the Highways Act 1980 (all as much amended), along with many others, make provision in their own sectors. The principal financial legislation is to be found in the Local Government...