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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 12 April 2015
Power to the Provinces?
England's Regional
Reforms
W JOHN HOPKINS*
INTRODUCTION
The reform of local government has recently become a focus of attention for the government of New Zealand. This has sparked a degree of interest in parallel reforms processes happening elsewhere in the world, particularly in the United Kingdom. The similarity of local government legislation in the two countries makes such comparisons natural. However, one area of reform has yet to receive much attention in New Zealand. This is the proposal to create a regional tier of governance in England with powers to develop and implement distinctive regional policy over a number of central government functions. This paper explores these potentially revolutionary proposals and asks whether such a radical approach to sub-national government has any place in New Zealand's sub-national governance structure.
The success of the Labour Party in the elections of 1997 led to a significant change in the way that the United Kingdom is governed. The avalanche of constitutional change that cascaded from Westminster in the late 1990s was phenomenal, starting with devolution of power to the 'Celtic fringe' of Scotland, Wales and Northern Ireland' and continuing with the Human Rights Act' , a Freedom of Information Act' and the reform of the Supreme Courts.4 These reforms have been well documented and have been discussed elsewhere but the reforming zeal of the Labour administration, ironically led by a constitutional conservative in the person of Tony Blair, extended far beyond these headline grabbing changes.'
Dr W John Hopkins, Senior Lecturer in Law, University of Waikato, New Zealand.
2 Human Rights Act
1998.
3 Freedom of Information Act 2000.
As with the 1999 election of the Labour government in New Zealand, the United Kingdom's Labour administration promised to change the operation of local government and to encourage local democracy. To some extent these promises reflected similar problems in both systems caused by their common constitutional framework. The constitutional situation of local government in both New Zealand and the United Kingdom is precarious. Both are creatures of statute limited by the constraints of ultra vires and largely at the whim of central government policy. The product of central government policy in New Zealand and the United Kingdom has, however, created two very different systems of local governance. In the United Kingdom local government, although still responsible for high levels of government expenditure, is largely an agent of the centre.' In New Zealand, by contrast, the local government tier still operates autonomously (the major exception to this being in the area of roading), although its role is often limited and peripheral.' Despite the structural differences the reform programmes of both governments have a number of similarities, most notably the creation of limited powers of 'general competence' for local government in both states. Outside the local (or territorial) authority examples, all similarities tend to disappear, as the approach taken by the United Kingdom government to regional governance has no equivalent in New Zealand. It is this divergence of approaches that forms the basis of this paper.
The United Kingdom has, to varying degrees, embraced the concept of regional policy autonomy in a way that is not yet evident in New Zealand. The devolution of power to Scotland, Wales and Northern Ireland is part of this process, but reflects particular 'micro-national' pressures that do not exist, at least not in such territorially definable units, in New Zealand.' However, the regional reform process has now moved to England where the government is proposing up to eight directly elected Regional Governments to co-ordinate and administer policy over a wide range of policy areas.
6 McLoughlin, J Legality and Locality. The Role of Law in Central-Local Government Relations (Oxford: Clarendon, 1996).
8 Some claims for Maori autonomy would fall into the 'micro-nationalise category, but unlike the mainstream micro-nationalist movements in Scotland and Wales, these claims are not based upon territory but on ethnicity.
5K Yearbook of New Zealand Jurisprudence Volume 6 Issue 1 2002-2003
The term England is used advisedly as sub-national government in the United Kingdom has never been a single subject. Separate structures of local government and regional administration have been the de facto norm for Northern Ireland, Wales and Scotland throughout the history of the United Kingdom. This was one of the features of the 'Union' state, which accepted the need for individual systems of local administration and central state service provision (although not democratically accountable institutions to oversee it) in the non-English parts of the United Kingdom. England's system of local government has therefore always been distinct from its Celtic partners and England was the only part of this ostensibly United Kingdom that had no regional administrative level. As with much of the United Kingdom's constitutional history, the 'Union state' was from the 'make do and mend' school of constitutionalism. Since 1999, the traditional structure has been put under immense strain through the advent of devolution which has led to the emergence of an 'English question' whereby the governance of the largest constituent part of the United Kingdom has started to receive significant attention.
Devolution has made it clear to the populace of the United Kingdom, and particularly England, that the governance of England is an issue separate from discussion of such matters on a United Kingdom basis. It was ever thus, but until now, few but the small band of academics who cared about such things took much notice. The post-devolution United Kingdom has raised the profile of this issue in a way not previously seen. The moves towards regional government in England reflect the first steps in answering this English question and an acceptance that regional policy is required for England as well as the other constituent parts of the United Kingdom.
THE ENGLISH QUESTION
There can be little doubt that the impetus for English regional government is
not to be found in England itself. Developments in continental
Europe, where
regional governments have emerged to undertake a policy making role between the
central state and the local government
sector, have played some role in
encouraging English policy makers and academics to consider alternatives to the
current local-central
government model, but this European influence has only
come into play in the context of a crucial domestic driver. The advent of
devolution in Scotland and Wales has had an impact upon the
political elites
of the English regions that was perhaps not envisaged by the Labour leadership.
Although references are often made
to developments across the channel,
particularly in the northern periphery the real impetus is coming from beyond
Hadrian's Wall.
Despite the physical dominance of England within the United Kingdom the question of how to govern England in a post devolution United Kingdom was very much a minority interest in the discussions, both academic and political, that surrounded the development of the devolution policy in the late 1980s.9 The Labour Party had discussed the prospect of democratic regional government in England intermittently in the early 1990s, but the 'policy' of English regional government, was developed as a reaction to criticisms that devolution to Scotland and Wales would create an unstable United Kingdom.
The development of this `policy', if such a term could really be used to describe the Labour Party's vague statements on English regional government up to this point, was left to Jack Straw who was appointed to oversee a consultation process on the issue. The appointment of Straw, a known sceptic of decentralisation and regionalism, was seen by many as an attempt to slowly abandon the policy. Although a few of the Labour hierarchy, notably John Prescott, were known to favour some form of regional empowerment, the key players, including Blair and Brown were either apathetic or actively hostile. Those hostile to the policy clearly felt that it had no real support outside a few Labour activists in the provinces and expected the consultation to confirm this.
The consultation document proposed a weak tier of 'regional chambers' be created with the possibility of regional assemblies to follow, if there was evidence of support for such a move.' The expectation that the second part of the policy proposals would shrivel on the vine was confounded by the results of the consultation process. Straw himself was visibly surprised by the strength of feeling he encountered, particularly in the North East, with its strong regional identity and fear of Scottish devolution." Despite his own personal
9 The Liberal Democrats favour English regional government as part of a
semi-federal United Kingdom. Although they co-operated with
the Labour Party on
constitutional reform issues, as a minority party their influence is
limited.
10 A Choice for England, Labour Party Consultation Paper,
United Kingdom, 1995.
60 Yearbook of New
Zealand Jurisprudence Volume 6 Issue 1 2002-2003
scepticism
the 'Choice for England' process produced a vague blueprint for regional policy
in England.' This largely confirmed what
the consultation document had proposed,
namely the immediate creation of indirectly appointed Regional Chambers to
co-ordinate local
government activities in the regions with the possibility of
administrative devolution to directly elected Regional Assemblies to
follow
(subject to referenda). The government's insistence that additional taxation or
expenditure powers would not be devolved to
the regional tier unless Regional
Assemblies were created, encouraged those who harboured designs of
decentralisation without democracy
to move towards the Assembly model. The
policy laid down in the policy paper became a manifesto pledge in 1997 largely
as a response
to the continued pressure from northern activists and MPs.
Despite its surprising presence within the Labour Party's manifesto, English regional government did not enjoy the wholehearted support of the Labour Cabinet that assumed office after their electoral success of 1997. Nevertheless, the hesitance shown by Tony Blair and the opposition of a number of senior party figures towards English regional democracy did not stop a series of regional administrative reforms being introduced, which laid the foundations for the current regional governance proposals. Amongst the most important were the creation of Regional Development Agencies (RDAs) and development of the Regional Chambers (as outlined in the Straw policy document)." Advocates of regional devolution in England clearly regarded these reforms as a preliminary step towards English Regional Assemblies and John Prescott, the key cabinet supporter of such reforms made his position clear in announcing the establishment of the RDAs:
The government is committed to move to directly-elected regional government in England, where there is a demand for it, alongside devolution in Scotland and Wales and the creation of the Greater London Authority.14
The policy remained as part of the Labour Party's manifesto as it went into the 2001 election and a number of factors began to conspire
12 A New Voice for England's Regions, Labour Party Consultation Paper, United Kingdom, 1996.
13 Regional Chambers are voluntarily constituted bodies that comprise representatives from local councils, industry. the trade unions and other regional interest groups, according to the procedures of the individual chamber.
14 Regional Development Agencies for England (London: Department of the Environment Transport and the Regions, 1997) 7.
in its favour. Most notably, the influential government think tank, the Policy Information Unit produced a damning assessment of policy co-ordination amongst the various arms of central government in the provinces.' Although the PIU report did not explicitly favour regional democracy (indeed it could be argued that it favoured greater centralisation) the evidence of regional policy failure was used by supporters of regional democracy to secure the assent of key players in the Labour hierarchy, most importantly the Chancellor, Gordon Brown.'
The result of these political manoeuvrings was the publication in March 2002 of the White Paper, 'Your Region: Your Choice' . The White Paper proposes a number of changes to regional governances in England, but the key proposal is the creation of elected Regional Assemblies subject to referenda in the regions concerned. The democratic regional tier will be given the role of co-ordinating and developing policy over a wide range of administrative areas in an attempt to 'join up' government at the sub-national level. The aim is to provide a level of government capable of developing coherent regional policies and encouraging co-ordination between local governments, regional bodies and central agencies.
ENGLISH REGIONAL GOVERNANCE TODAY
The growth of regional administrative units is a development that has occurred across Europe as Nation States have struggled to come to terms with their post-war role. The result in most EU member states has been the deconcentration and/or decentralisation of government power to regional tiers beneath the national level. The United Kingdom was no exception to this trend with increased development of field agencies becoming a feature of governance from the 1970s onwards. In Wales, Scotland and Northern Ireland, the existence of the 'Offices' provided a natural conduit for the deconcentration of such powers. In England the need for the deconcentration of policy delivery was also recognised but the process was extremely ad hoc with individual departments creating their own field offices in the absence of an existing regional structure.''
15 Policy Information Unit Reaching Out. The role of central government and the regional and local levels (London: The Stationary Office, 2000).
16 Tomaney, J & Hetherington, P "England Arisen?" in Hazell, R (ed) The State of the Nations 2003 (London: Academic Imprint, 2003).
17 See Stewart, M "The Shifting Institutional Framework" in Bradbury, J and Mawson, J (eds) British Regionalism and Devolution (London: Jessica Kingsley Publishers, 1997).
62 Yearbook of New Zealand Jurisprudence Volume 6 Issue 1 2002-2003
These did not have coterminous or contiguous boundaries and their responsibilities varied considerably. The result was an extremely confused structure and even experts were hard pushed to understand the extent of sub-national decision-making by regional officials and QUANGOS". The actions of the Conservative government in the early-1990s rationalised regional policy delivery in England through the creation of a series of regional offices, one for each of the eight economic planning regions (although some boundary changes took place at this point). Under the moniker of the 'Government Office' field offices from several departments were brought together under the one roof.'" The Director of each office is responsible both to the Office of the Deputy Prime Minister and individual departments for the delivery of regional services.
The coalescing of regional powers around the Whitehall administrative boundaries has had the surprising effect of turning these largely unknown administrative borders into immutable regional boundaries in the eyes of the government. These will form the borders of the new democratic regions despite the fact that they are not based upon any historical or rational division of England and largely date from the economic planning boards of the 1960s (which in themselves were based upon Treasury attempts to create a single regional structure on the basis of the wartime planning regions). The White Paper has made it clear that no challenges to these boundaries will be entertained in the regional governance process. The government clearly views the price that it will pay in the unpopularity of these borders in certain regions is worth the avoidance of squabbles over where exactly Yorkshire ends and the Midlands begin. The problem for the pro-regional lobby is that people do care about these borders, often more so than the issue of regional democracy itself. In recent public debates on the subject many members of the public showed almost total ignorance over what the reforms meant but were adamant that the boundaries of the regions were wrong. The government's attempt to avoid an argument of
18 Quasi-autonomous non-governmental organisations. In New Zealand the concept of the Crown Entity has been used to give a degree of structure to the Quango state, see Palmer, G Bridled Power: New Zealand Government under MMP (Auckland: Oxford University Press NZ, 1997) chapter 5.
19 Examples include G.O.N.E. (Government Office North East), based in Newcastle and GOYH (Government Office for Yorkshire and the Humber) based in Leeds.
20 Originally, Government Offices incorporated field agencies from the
departments of trade and industry, transport, employment and
the environment. In
1999 this was expanded to include Education, Culture and the Home
Office.
boundaries may yet backfire and cause opposition to the reforms
themselves. Nevertheless, although the use of the current boundaries
perhaps
represents a missed opportunity it does not mean that such a system will not
work. Identities have developed in Germany,
the US and even New Zealand'', among
others, on the basis of 'artificial' regional boundaries. Whether a similar
phenomenon will
be experienced in England remains to be seen.
REGIONAL GOVERNMENT AND REGIONAL STRATEGIES
The White Paper (Your Region: Your Choice)" outlines how each of England's eight regions will be able to move towards a directly elected regional government.' The reforms will require a majority of electors to support them in a referendum and demand a reform of local government as part of the package." The Assemblies themselves will have between 25-35 members elected through the Additional Member System with up to six members forming the regional executive. The government has also indicated the inclusion of some form of stakeholder involvement although the format has yet to be finalized."
Although the issue of regional boundaries seems destined to exercise the minds of some participants in the referenda, it is a matter of relatively little importance compared with the question of what exactly the erstwhile regional tier will be empowered to do? On the face of it, the responsibilities of the regional tier are significant and
21 One need only spend one afternoon watching a New Zealand Provincial Rugby game to confirm this.
22 Office of the Deputy Prime Minister, Your Region, Your Choice, Cm 5511 (London: HMSO, 2002). All the various documentation on the White Paper and the White Paper itself can be found on the Office of the Deputy Prime Minister's (ODPM) website: www.odpm.gov.uk.
23 London is not included in these reforms as a limited form of Regional Government for the Capital was established under the Greater London Authority Act 1999. For a discussion of this reform see Tomaney J, 'The Governance of London' in Haze11, R (ed) The State and the Nations: The First Year of Devolution in the United Kingdom (London: Academic imprint, 2000), 241-268.
24 The government has stated that Regional Assemblies will only be created in areas that have a single tier of local government. At present all the regions have some areas of two-tier local government (Counties and Districts) and should the regional reform be accepted by the region as a whole, a form of unitary council will be introduced in these areas.
25 See White Paper on regional governance: analysis of responses to consultation (London: Office of Deputy Prime Minister, 2003).
64 Yearbook of New Zealand Jurisprudence Volume 6
Issue 1 2002-2003
the White Paper outlines ten areas in which the Region
Assemblies will operate, namely:
Those familiar with the devolution of power to Scotland and Wales and the mechanisms utilised for the allocation of such power will be forgiven for thinking that this represents a significant list of responsibilities. In Scotland the negative method of policy definition has meant that significant, and relatively broad, areas of policy can be legislated on by the Scottish Parliament and its Executive." In Wales, although the method of definition has been positive, there are still broad areas of delegated powers that have been transferred en bloc." Neither of these methods will be used in the English model. Instead, the English regions will be given specific authority to undertake particular executive tasks and responsibilities. There are no plans, at present, to grant them a power of general competence, even of the limited variety recently granted to local government in both England and New Zealand.' Instead the English regions will be given responsibility for drawing up a number of strategies, in the fields
26 Powers are defined negatively when the body in question is given a 'general competence' with certain powers (which can be quite an extensive list) being reserved to the central level. The limits on the autonomy of the Scottish Parliament (and executive) are found in Section 29 and Schedule Five of the Scotland Act 1998.
27 See for example, The National Assembly for Wales (Transfer of Functions) Order 1999.
28 For New Zealand: Local Government Act 2002, s 12. See generally Hewison G,
"A Power of General Competence — Should it be
Granted to Local Government
in New Zealand" (2001) 9 Auckland University Law Review 498.
outlined in the
White Paper. They will also have specific `implementation' powers to undertake
tasks within these strategy areas.
It is less than clear, however, that the
implementation powers envisaged will be sufficient to ensure delivery of the
regional strategies.
The strategies will be drawn up by each regional assembly in partnership with the various regional stakeholders in negotiation with the centre. They will be accompanied by a small number of 'high level targets' (the example of economic development indicators is given in the White Paper), which will be negotiated between the Assembly and central government." The extent to which these will be true negotiations must be questioned, given the power imbalance between the two tiers. These will be assessed by reference to an 'annual report' that will give details as to the regions' progress in achieving its targets and the wider strategic objectives.
This system of nationally agreed strategies and targets is reminiscent of the 'government by contract' systems that have become popular in the central government's relationships with executive agencies and public service departments. That such a structure is envisaged for a democratically elected body does not suggest the development of an autonomous regional tier, but rather an arm of central government. The contract model suggests a relationship of regional governments delivering national policy priorities (particularly as successful achievement of targets will lead to financial rewards). This leaves little scope for the regional level to deliver the policy priorities that the regionally elected representatives believe should be followed. The relationship between the centre and the region in relation to the development of strategies could develop into one of principal and client rather than partnership of equals.
STRATEGY IMPLEMENTATION
Although there are significant question marks over how exactly the regional 'strategies' will operate, the main problem that will face the regional tier is whether the implementation powers granted to the regions will allow them to make any meaningful impact upon them. Although the White Paper has much to say upon the role of the regional tier in developing regional strategies it is much more
29 Op cit n 22, paragraph 4.7.
Yearbook of New Zealand Jurisprudence Volume 6 Issue 1
2002-2003
circumspect when discussing the implementation powers to be
given to the regional tier. The details that do exist point to an eclectic
collection of powers and paucity of responsibility in key areas which has
significant implications for the government's proclaimed
aim to encourage
joined-up' government. It is also questionable whether the English regions as
constructed in the White Paper will
be able to develop meaningful regional
policies.
The Government has made much of the potential benefits of a regional tier for economic development and it is in this policy area that the main powers of the region will lie. Key to the delivery of regional economic strategies will be the Regional Development Agency for which the Regional Assembly will now be responsible. These institutions, which were established in 1999 to deliver improved regional economic development, have already become an established part of the English regional landscape. The linking of the RDAs to the Regional Assemblies will clearly improve the legitimacy of these organisations but the exact relationship is yet to be laid out in any detail.
The White Paper states that the Regional Assembly will decide the RDA Board and Chair, although 50% of these appointments must be from the business community. In addition, the RDA's Regional Economic Strategy, which defines the RDA's policy, will require approval by the Assembly although the drafting process will remain in the hands of the RDA. The Government also intends to hold a veto power to ensure that Regional Plans are not 'inconsistent with national policies' or have a detrimental effect beyond the borders of the region.' The extent to which governments utilise this veto power and its exact definition in the legislation may prove significant to regional control of the RDA. Of equal significance will be the funding mechanisms. The RDAs will no longer be funded by central government, but instead through a block grant provided by the region. The exact nature of the funding mechanism and further accountability mechanisms are left to the regional assembly, although the government, in what appears to be a veiled threat, has indicated that it 'believed' in a wide degree of flexibility for the RDA.'
30 Op cit n 22, paragraph 4.23.
31 Op cit n 22, paragraph 4.24.
In addition to each Regional Government
having responsibility for its RDA, a number of peripheral powers in the field of
economic
development are devolved to aid the delivery of regional strategies in
the fields of sustainable economic development and skills
development. These
include the right to be consulted by Small Business Service Offices, on bids to
the Higher Education innovation
fund while Local Skills Councils will be
required to 'have regard to' assembly strategies in the development of their own
policies.
Local Skills Councils will also have a number of regionally appointed
members on their boards. Even the briefest examination of these
`implementation
powers' makes it clear that they are not significant policy levers. The right to
be consulted by a number of government
QUANGOs (Crown Entities) and even to
appoint some of their board members do not amount to the ability to deliver
policy.
On the basis of these powers and responsibilities, the ability of the Regional Assembly to deliver a regional economic strategy appears something of a Sisyphean Task, but such conclusions are not confined to the economic development portfolio. The pattern of limited and eclectic involvement in substantive policy fields is repeated throughout the White Paper. A few examples will suffice to emphasise the point.
The development of regional transport strategies is seen as a positive step towards improving the United Kingdom's transport situation, but the powers of 'implementation' given to the regions in this area are minimal in the extreme. The Regions will be able to advise the centre on the funding of local transport projects, including whether they fit withirithe regional strategy; to proposed road and rail schemes to the Highways Agency and the Strategic Rail Authority respectively; allocate Rail Passenger Partnership Grants (around £1 Million for the NE Region) and have a right to be consulted by national transport bodies. To ask the regions to deliver a meaningful transport strategy on the basis of these largely consultative powers is bordering on the ridiculous. The ability of the Regional Assembly to deliver its transport strategy will continue to be reliant upon decisions of central government and national Agencies.
Overall, the Regional Assemblies will have responsibility for appointing a number of regional QUANGO representatives, a right to consultation over central policies which affect the regions and the power to allocate resources for several centrally sponsored initiatives
68 Yearbook of New Zealand Jurisprudence Volume 6 Issue 1
2002-2003
(e.g. in relation to funding of public housing). These do not
amount to significant policy levers capable of delivering regional policies
and
strategies without the co-operation of central (and possibly local)
government.
The one exception to these comments lies in the field of planning where the regions will have a significant role as outlined in the Green Paper 'Planning: Delivering a Fundamental Change' . These reforms will see a greater use of regional planning strategies to deliver clear planning guidance and remove much of the confusion and delay that currently dogs the United Kingdom's planning regime. This will happen whether or not the Regional Assemblies are created. Directly elected Assemblies, however, will take responsibility for drawing up and issuing regional spatial plans without reference to the Secretary of State. The Region will also have the right to request that planning applications be 'called in' by the Secretary of State if they believe they are incompatible with the regional plan, although the final decision will remain with the United Kingdom Minister.32 Under these reforms, the democratic regional tier, independent of the centre, will now exercise significant powers in an area formally dominated by the central executive.
Notwithstanding this significant exception, this short tour through the powers of the regional Assemblies brings us to the inescapable conclusion that England's regional reforms as currently proposed fall far short of the aims expressed in the White Paper. They are certainly not an English equivalent of devolution to Scotland or even Wales and will not deliver real regional policy-making and 'joined up' governance. The wide range of regional strategies that each region will develop, are of limited relevance without coercive force or incentive to back them up. It is difficult to see how the disparate and limited range of 'implementation powers' that will be allocated to the regions will be able to deliver these strategies. How will regions satisfy the expectations that such strategies will create?
32 'Called in' refers to the process by which the Secretary of State can
review any planning decision at his or her own discretion.
For more information
see Craig, PP Administrative Law (4th ed) (London: Sweet and Maxwell,
1999) 202-286.
FINANCING THE REGIONS
The key area in which the regions may find space to exercise a degree of autonomy and thus deliver a truly regional policy framework is through expenditure. In stark contrast to the lack of functional authority that the regional tier will enjoy, the financial autonomy of the regions has the potential to offer significant policy leverage. As is common with all sub-national government in the United Kingdom, the primary source of finance for the regions will be a block grant supplied from the Treasury. At present this is estimated to amount to around £350 million in the case of the North East and £500 million in the case of the North West region. Although this may sound like a significant sum it amounts to less that 5% of public expenditure in these regions, excluding Social Security. The White Paper claims that the regions will have 'influence' (through its consultation rights) over a further £500 million in the North East example and £1.3 billion in the North West. Even if they are able to exert their 'influence' successfully this still amounts to a limited budget, particularly when one realises that significant elements of it are constrained by nationally mandated expenditure.
Nevertheless, the fact that the finances are from a block-funded source to be allocated on the basis of formula has the potential to give the regions some ability to exert influence on the development of their territories. Although the Regions will not be granted a general competence, the broad range of aims that are likely to be part of the regional strategies could give the regions the ability to spend their financial resources relatively freely within these limits. Subject to the judicial limits of 'fiduciary duty' , the general nature of the strategy concept may allow the regions to slip the leash of ultra vires at least to a limited extent.
To the surprise of many, the English regions have also been given the right to raise their own taxation through an optional levy on the local government 'Council Tax' The government expects this power to be used immediately to pay for the start up costs of the Assembly predicting an extra 5p per week on the Band D range of Council Tax Payers for this purpose. Although the regional taxes could provide the region with a degree of flexibility in this area, politically the use of this resource may prove difficult. Council Tax is a notoriously
33 The Council Tax is a form of property-based taxation.
70 Yearbook of New Zealand Jurisprudence Volume 6 issue
12002-2003
inequitable form of taxation and as it is the only independent
source of finance open to the regions any meaningful policy expenditure
is
likely to require a significant increase.
Of more relevance may be the ability of the English Regions to borrow. Although subject to limits to ensure that the regions do not abuse this power in their formative years the regions will be free to engage in such activities after this period. This significant power, not granted to the Scottish and Welsh devolved institutions, has been used to some effect in European systems. Even if the region does not undertake the borrowing itself, by acting as guarantor, it has the potential to unlock significant funding for capital projects.'
The financial freedom of the English regional tier may yet prove to be crucial to them making an impact upon the governance of England. Lacking significant imperium powers and hampered by the lack of a general competence, the freedom of expenditure that the White Paper proposes is likely to play a key role in ensuring that regional strategies are delivered.
ENGLAND'S REGIONAL REVOLUTION?
The White Paper, 'Your Region: Your Choice' marks a significant change in approach to sub-national governance in England. It marks an acceptance by the national level that policy cannot always be developed and delivered by the centre even through regional agencies. There is therefore a need for democratic institutions between the local administrative tier and the centre to co-ordinate and deliver policies within a national framework. This argument has been widely accepted across continental European states and England will be one of the last EU member states to establish a meso or regional level. Such an argument has yet to accepted in New Zealand where the regional tier remains confused and disparate. The operation of centrally operated services and regional QUANGOs remains the norm while accountability and regional policy-making remains uncoordinated. Although many within the local government sector in particular, accept the need for a co-ordinating meso level (at least in private) few regard the current Regional level as the suitable body to undertake this role. Despite the aims of the Local Government Act
34 For a discussion of the use of borrowing by Regions in Europe see Hopkins, WJ Devolution in Context (London: Cavendish, 2002) 231-240.
2002 to broaden the remit of the New Zealand regional
level, as they currently stand New Zealand's regions lack both the remit and
ability to undertake the 'joined up' role that the English Regional reforms
envisage.
Although the aim of the English Regional Assemblies will be to deliver coherent policy at the sub-national level, the ability of the proposed institutions to live up to their billing must be seriously questioned. The White Paper represents the results of a long series of battles fought out in the Cabinet Committee of Nations and Regions. Chaired by the White Paper's sponsor, the Deputy Prime Minister, John Prescott, this Committee pitted Cabinet centralists against and those who favoured regional decentralisation. It met on numerous occasions as the release of the White Paper was repeatedly delayed while concessions were won and lost from individual departments. The net result of this process was a White Paper that promises much but delivers little. A 'Whitehall knows best' attitude amongst central departments has deprived the proposed regional tier of a number of key powers that are necessary to deliver successful regional strategies and create real regional policy.
It is likely therefore, that the regions as constructed in the White Paper, will not live up the expectations that will be encouraged by their creation. Nevertheless, the fact that the English regional tier will not possess the requisite powers to deliver some of its aims does not mean that the region reforms are doomed to fail. Constitutional change is often a slow and incremental process and the mere creation of a regional policy tier will itself create a dynamic that may lead to more meaningful change. This is certainly the wish of the pro-regionalists within the Labour cabinet and their long term goal is clear from the White Paper's comments that further powers may flow to the regions in future."
All these questions must be put on hold while we await the first referenda. These will be held in the three northern English regions of Yorkshire (and the Humber), the North West and the North East towards the end of 2004.36 Should the voters of at least one of these regions accept the reform proposals, which will be outlined in a draft bill prior to the referenda taking place, it is unlikely that the Regional
35 Op cit n 22, paragraph 5.5.
36 For more details see Office of the Deputy Prime Minister, Your Region: Your Say (London: ODPM, 2003).
72 Yearbook of New Zealand Jurisprudence Volume 6 Issue 1
2002-2003
Assemblies as currently proposed will prove the last word on
English devolution. The creation of regional government has created a
new
dynamic in sub-national decision making throughout Western Europe and there
appears little reason to suppose that the English
version will prove any
different. Although the limited nature of the reforms makes it unlikely that
there will be much in the way
of dancing in the streets should the reforms be
introduced, history may yet look back on these developments as the beginning of
a
fundamental change in the governance of the English state.
While England continues to struggle with its regional question, New Zealand policy makers could be forgiven for thinking that such changes may be interesting to view from afar but have little relevance for a country with one tenth of England's population. Such assumptions do not necessarily follow. With a landmass the size of Italy, the needs of New Zealanders vary significantly while the state finds itself unable to deliver coherent policy across such vast areas. The development of a plethora of local and regional field agencies testifies to this second point. The English experiment is an attempt to resolve these problems and to answer and deliver responsive and coherent government at the sub-national level in a system of Westminster Parliamentary sovereignty. If it succeeds, New Zealand policy makers would do well to take note. If it fails then attempts to deliver improved sub-national governance may need to look elsewhere for inspiration.
74 Yearbook of New Zealand Jurisprudence Volume 6 Issue 1 2002-2003
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