Review of Local Government Law in Scotland (McFadden)



ISBN: 0 406 95960 9

PRICE: £27

Whilst the principal focus of Scottish writing on public law in the last five years has been on the new Parliament and Executive and the impact in Scotland of the Human Rights Act 1998, other sectors have retained their constitutional significance and should not be allowed to slip below the horizon. Among these, local government should have pride of place.

Prior to devolution, the structure and functioning of local authorities and the statutory responsibilities they discharged already represented much that was distinctive about Scottish public administration as a whole. Whilst not directly touched by the Scotland Act 1998 itself, in that the Act did not require a new reorganisation or other major change, local government has certainly been affected by the arrival of the devolved institutions. There has been reforming legislation in some areas (by, for instance, the Standards in Scotland’s Schools Act 2000 and the Housing (Scotland) Act 2001), and there is more on the way in others (e.g. town and country planning). There is a new power to promote wellbeing, a new duty to secure best value, and a new duty of community planning. The new STV electoral system is to be implemented with effect from the 2007 elections. (To give effect to these changes, we have seen old-style “Local Government Acts” and “Local Government (Scotland) Acts” supplemented with the Local Government in Scotland Act 2003 and the Local Governance (Scotland) Act 2004 – where next in creative statutory terminology?) Local government has also been affected by legislation on ethical standards and freedom of information.

In her timely and most readable new book, Jean McFadden does an excellent job of integrating all this new material into the pre-devolutionary picture of Scottish law government law. It produces a systematic and accessible account of a field of law which has always threatened to overwhelm by its technicalities and complications. There are chapters on the current structure and functions of local authorities; the role of councillors and how councils work; the financing of local government; and supervision by the ombudsman, the Standards Commission and the courts. The book will serve well both students and practitioners. For the most part, Ms McFadden presents a dispassionate and objective account, but there are also points at which her personal commitment (as explained in the preface) to Scottish local government as a councillor for many years in the city of Glasgow, and her enthusiasm for her subject, add attractive colour. At the same time, however, they lead the author to express her own misgivings about the possible future direction in which Scottish local government may go. These are reflected in the closing chapter and (rather uncomfortably added) appendix on central-local relations.

Jean McFadden reminds us that it was one of the principal concerns of Donald Dewar’s white paper on Scotland’s Parliament in 1997 that the new powers of the Parliament and Executive should not be conferred at the expense of local government. The McIntosh Commission was established to examine the future of central-local relationships in Scotland and also to consider the ways in which local councils might become more responsive and accountable to their communities. The Commission’s report and its aftermath are well treated in the book, but so too are the author’s apprehensions in the light of subsequent events, leading to the apparent abandonment of the project for a “Covenant” between the Parliament and local government and a general souring of relations. Frequently, this is expressed as the concern of local councillors but, of course, there is a broader constitutional interest here. As in Wales, and perhaps in time, in England, as well as many other countries in Europe, one of the biggest questions is whether, in the drive towards subsidiarity, new regional autonomies are to be achieved, over time, at the cost of local autonomy.

Chris Himsworth, University of Edinburgh

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