25 March 2014

Aberdeen's unhinged local government

Local authorities sometimes like to think of themselves as little parliaments, but legally, they're different beasties. While Holyrood has the power to legislate in all areas which haven't been reserved to Westminster, the powers of city and regional councils are entirely different. Rather than specifying what powers local authorities don't have, and granting them everything else, councils can only exercise the authority parliament explicitly gives them - and anything incidental to realising those functions. 

Where councils step outside of their powers, the courts can step in.  It doesn't matter if the council's great new wheeze is a splendid and socially beneficial idea. If they don't have legal authority for their actions, they're unlawful and liable to be squelched in judicial review.  In the 1980s, Strathclyde Regional Council wanted to add fluoride to the local water supply, aspiring to improve the gnashers of the average Glaswegian.  In the Court of Session, Lord Jauncey held this scheme was ultra vires, as the legislation didn't give the Council authority to adulterate the supplies of water for which it was responsible.  

More recently,  Glasgow City Council tried to use its statutory alcohol licensing powers to give itself the power to regulate how much clothing strippers in city establishments were required to keep on during performances, and the quantity of sunlight to be left between patrons and dancers. Lord Eassie wasn't having it, and the Inner House of the Court of Session determined that the whole scheme had no statutory basis.  Although drink might be taken in strip clubs, the Council has no locus to dictate terms to Spearmint Rhino and others, on pain of losing their alcohol licenses. The scheme was beyond the Council's powers.

It was with these limits in mind that I read with interest that Aberdeen City Council - seemingly a hotbed of Labour Party fucknuttery - had decided to brighten up its council tax bills with publicly-funded letters, urging its rate-payers to share its view that Scottish independence is a deuced iffy prospect.  One response, rooted in political whataboutery, contends that if the Scottish Government can use public funds to promote independence, what's stopping the loyal Union adherents of the north east from availing themselves of public funds to share their own perspective with voters? What's sauce for the goose is sauce for the gander, as they say.  

As fascinating as I find that rejoinder, the issue is one of law - not just of politics. Local and national governments don't have the same powers. Legally, they aren't gooses and ganders: it is a false and unhelpful parallel. So given the limited nature of Aberdeen City Council's powers, under what authority is the august Cooncillor Crockett justifying the expenditure of public cash to share his constitutional preferences with the punters?

Malcolm Combe of the University of Aberdeen, who got one of these letter through his letterbox, raises these questions in a recent blog. Malcolm wonders if it might be justified under a fairly wide section of the Local Government in Scotland Act 2003. I'm not so sure. I asked the University of Glasgow's Professor Adam Tomkins about them last night. My Strathclyde colleague Dr Chris McCorkindale weighed in with a reference to the case of R v ILEA ex parte Westminster City Council from the 1980s. There, Westminster Council employed its general statutory power to "inform the public" to promote its own political preferences. The Court of Appeal held that this spending was for an improper political purpose, and the veneer of "information" wouldn't save the Council's partisan publicity campaign. The scheme was declared ultra vires. You have to wonder if this pro-Union campaign in Aberdeen could withstand similar legal scrutiny.

In statute, we can find more explicit limits on councils' powers. Under the Local Government Act of 1986, for example, councils are prohibited from publishing "political publicity", which is defined as "any material which, in whole or in part, appears to be designed to affect public support for a political party". This extends to Scottish local authorities -- including Aberdeen City Council, will or nil its ruling Labour-led coalition. In a 1988 amendment, parliament included this significant aid to construction of this section:

2(2) In determining whether material falls within the prohibition regard shall be had to the content and style of the material, the time and other circumstances of publication and the likely effect on those to whom it is directed and, in particular, to the following matters—
(a) whether the material refers to a political party or to persons identified with a political party or promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another;
(b) where the material is part of a campaign, the effect which the campaign appears to be designed to achieve.

Does Council Leader Barney Crockett's letter to the folk of Aberdeen fall foul of this section? There's at least an argument that it does. To violate the ban on employing council resources for political propaganda, we need only demonstrate that the Council message "promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another". It is difficult to see the referendum in any other light. Councillor Crockett might contend that his letter takes aim at the aspiration of independence, not support for the SNP per se. To my eye, that position seems difficult to maintain in light of the amendment, and the issues it invites the courts and the council to consider in determining whether using public funds to pay for your partisan correspondence is prohibited or permitted. 

It remains to be seen whether anybody will have the gumption to challenge Aberdeen City Council's behaviour in court.  Were they to do so, however, it looks like there's at least an arguable case to be prosecuted against this ultra partisan and apparently unhinged local authority.


  1. They may have more to worry about from Audit Scotland - they tend to take quite a conservative view of vires issues.

    1. From a comment or two on social media earlier, it seems some dissatisfied local punters have already sent Audit Scotland some correspondence about this. The wonders of technology!

    2. Yes agree, thanks again for a lucid exposition. I would be mighty pissed off if Glasgow council were to do the same, or indeed were an SNP council to stick its neb into the debate from the other side of the trough.

      Surely our councillors have enough to do as it is, maintaining their high standards of probity and efficiency and rational debate, while still somehow finding the time to engage in desperately needed fact-finding missions to Kowloon and Florida. How lucky we are to have them, says Tiny Tam.

      and I'm a No man.

    3. Of course, in Glasgow we're seen our own jiggerypokery in contravention of the 1986 Act, after our Labour Party civic leaders couldn't resist trying to insert a Nat-bashing passage into the council-funded magazine. Local democracy is important, but this sort of stuff - legally and politically - can't be on, whichever side of the political or constitutional fence we find ourselves on.

    4. I've reported them to Audit Scotland and recieved the reply that they were "investigating" the claims.

    5. Thanks for the intelligence, John. I imagine someone may have availed the Commissioner for Ethical Standards in Public Life in Scotland too, on the basis of the Matheson precedent.