The Warwick Commission’s has published its report on Mayors just in time to be influential in the run up to local elections. It’s a great product linking academic theory with policy. The Commission consists of key national figures (mostly political with a few, rather predictable think tanks). It clearly aims to influence the national debate rather than engaging in local politics. As an example of how academic research can have impact for limited cost (the only named researchers are two PhD students though the Commission is led by leading academics Prof Wyn Grant and Prof Keith Grint) it’s impressive.
Locating the central research question ‘what is the role of elected mayors in providing strategic leadership to cities?’ at a highly generalist, and international, level, the Report begins to engage perhaps the greatest local concern, albeit at a high level of generality. As Newsnight put it recently in their coverage of the debate on Mayors: ‘People are being asked to vote without knowing precisely what powers a Mayor would have’. Or more simply: what would a mayor do?
The key point here is that the practice of localism, which is contextualised but exceeds the 2011 Localism Act, provides a political impetus for mayoral powers that could fundamentally change the landscape of local governance.
As the Warwick Commission notes: ‘Whilst the debate about clarity over which powers (and budgets) Whitehall will hand to cities with directly elected mayors will continue, it is also important to recognise the soft and invisible power that has often been accumulated by elected mayors that sits outside their statutory remits has been considerable. In many cases, it has led to the granting of more powers‘ (p8).
This is a hugely important point given the conventional approach to local government, which has been highly regulated and controlled. For even when basic duties of local authorities have been cast in broad, and often highly subjective, terms, supervision is still centrally imposed, with intrusive inspections and options for ‘earned’ rather than automatic autonomy (although as Rhodes, in particular, has long demonstrated, bargaining and allocation have been fundamental to the real allocation of powers).
The current political narrative suggests that this is changing. Certainly, from a legal point of view, the introduction of the general power of competence has powerful rhetorical force and applies not only to local authorities but also to any elected Mayors. It’s worth re-writing it in these terms:
‘[A Mayor] has power to do anything that individuals generally may do’.
This could be powerful stuff.
This trend is also noticeable in the courts. Lord Judge, the Lord Chief Justice of England and Wales and Lord Sumption (recently elected to the Supreme Court) have both made clear their concern that the use of judicial review overly limits the freedoms of local authorities to govern. Lord Judge was strikingly keen in his press conference last year to emphasise that judges ‘have to be careful to remember that we cannot administer the responsibilities which [local authorities] have …. We have to be careful to make sure that we stay within our proper function’.
This does seem to represent something of a sea-change. Localism as practiced, rather than as regulated. In his classic 1986 text Local Government in the Modern State, Martin Loughlin emphasised that the role of law in central-local government relations in the post-war period was one of establishing a structure for the mediation of interests in service areas (such as education, council housing and town and country planning). Central-local relations were ‘juridified’ to use Loughlin’s term, even if this did no more than provide a structure within which bargaining took place.
This rigidity certainly affected the ‘well-being power’ (s 2 of the Local Government Act 2000), the legislative precursor of the general power of competence. Its credibility was significantly undermined after the Court of Appeal’s decision in Brent LBC v Risk Management Partners Ltd ( EWCA Civ 490). This had held that the mutual insurance vehicle set up by a group of ten councils was unlawful and damaged local authority confidence even if eventually the Supreme Court reversed the decision ( 2 AC 34). Similarly, as the High Court confirmed in R (Khan) v Oxfordshire County Council ( EWCA Civ 309) anything specifically and expressly prohibited under another statute cannot be done under the well-being power (or, by extension, the general power of competence) instead.
The possibility of elected mayors and the political narrative of localism combined with the general power of competence suggests not simply that the law has changed but that there is a new framing. (In academic terms, this is phenomenology as much as positivism). Ask not what you can do for localism but what localism can do for you.
The powers of mayors are not always obvious on the face of the text. These will, as the Warwick Commission explore, taking their cue from central themes in geographical and political science research, leadership, place and bureaucracy, evolve. Localism is more than a legal provision. Its practices and multiple understandings will be more powerful than any section in an Act.