Devolution revolution?

First published on The MJ.

As the English Devolution and Community Empowerment Bill begins its passage through Parliament, Laura Hughes, partner and head of public law at UK and Ireland law firm Browne Jacobson, assesses whether or not it delivers on the government’s promise to deliver a “devolution revolution”.

When the 338-page English Devolution and Community Empowerment Bill was published on 10 July, those involved in local government took a collective deep breath.

With 30 schedules and 88 pages of primary provisions, surely such volume must mean a revolution is indeed underway?

Key provisions

The Bill contained several surprises not previously discussed. Most notably: provisions prohibiting upwards-only rent reviews (triggering immediate backlash in business and legal circles); reintroduction of supplementary voting for mayoral elections (widely viewed as a political manoeuvre to maximise Labour mayors); and licensing provisions for micromobility vehicles (exercised by strategic authorities where established, or otherwise by unitary or county councils).

New powers for strategic authorities, trailed in the English Devolution White Paper, were also introduced – some representing genuinely significant changes.

However, substantial portions of the Bill simply replicate provisions previously made routinely in establishment regulations for combined authorities under the previous government.

Many powers are therefore not truly "new" – what's novel is their placement in primary legislation, making them available to all strategic authorities "as of right".

What is genuinely new for strategic authorities? 

Other notable new powers or functions for strategic authorities or mayors include:

• Established Mayoral Strategic Authorities (EMSAs): Formal introduction of EMSAs with enhanced powers and functions. Strategic authorities can propose EMSA status, with the Secretary of State deciding on proposals.
• Voting arrangements: Simple majority voting with the mayor in the majority becomes standard, though existing legislative arrangements remain unaltered.
• Areas of competence: The Bill introduces seven areas of competence as a new concept.

The Secretary of State can provide strategic authorities with the functions or powers of any public body through regulation. Once added, functions can’t be removed by regulation.

• Mayoral commissioners: Mayors can appoint up to seven commissioners (one per competence area) to assist with mayoral and strategic authority functions, with the Secretary of State empowered to issue guidance.
• Function transfers: The Secretary of State can move functions between mayors and strategic authorities through regulation, and abolish bodies lacking functions. Theoretically then, all strategic authority functions could be transferred to elected mayors, and strategic authorities subsequently abolished entirely.
• Collaboration powers: Mayors gain powers to convene local partners and collaborate with other Mayors, though the provisions are overly complex and may change during the Bill's passage.

What do areas of competence involve? 

These areas define the scope of powers and responsibilities devolved to strategic authorities. Headline changes include:

• Transport and local infrastructure: New powers include micromobility vehicle regulation and duties for constituent councils to comply with local transport plans.
• Housing and strategic planning: Mayors gain powers to call in strategically important planning applications and charge community infrastructure levy, plus strategic placemaking powers (the latter effective via the Planning and Infrastructure Bill).
• Economic development and regeneration: New powers for Mayors to produce local growth plans and manage expenditure grants.
• Public safety: While transferring Police and Crime Commissioner and Fire and Rescue Service functions to mayors isn't new, the Bill allows the Secretary of State to effect transfers without strategic authority consent where boundaries are contiguous or wholly contained within the strategic authority boundary.

Other areas of competence cover skills and employment support; health, wellbeing and public service reform; and environment and climate change.

Familiar territory

Several provisions aren't genuinely new, such as:

• Payment powers for strategic authority members with special responsibilities.
• Precepting, borrowing and levying powers for mayors.
• Extension of general competence powers to strategic authorities and mayors.

Across specific competences, familiar powers include highway works arrangements, traffic contravention enforcement, adult education, development orders, land acquisition and development, housing provision, mayoral development corporations, economic condition assessments, visitor promotion, pension scheme cooperation, and health improvement powers.

A devolution revolution?

The English Devolution and Community Empowerment Bill represents progression, rather than revolution.

It does move on the development of strategic authorities in England and provides more powers and functions “as of right”, but it doesn’t represent a significant expansion in the powers of mayors and strategic authorities.

The Bill does, however, create a framework in which significant expansion can take place in the future, and sits alongside a clear policy commitment to deliver further powers and functions.

It feels less like the revolution itself – but used right, could be the framework within which revolution is delivered.