Inevitably, it has been hard to gain significant traction on the proposals to ‘community organize around the activation of the Sustainable Communities Act 2007 (amended 2010) in favour of powers to local authorities to take Brexit into their own hands.
Nevertheless, some progress is being made, and a plan for roll out and wider publicity of the possibilities is taking shape.
Monday will see 38 Degrees starting to get behind the initiative, if only tentatively, with a blog on its website. In the longer term, if enough interest is aroused, this could lead to localized petitioning of local authorities, urging them to consider putting a proposal to central government under the provisions of the Sustainable Communities Act.
This approach will certainly do no harm and may lead to other branch-off activity, though my gut instinct is that the more effective approaches will be:
a) via the local referendum provisions set out in the Local Government Act 1972 (covered here); and
b) direct lobbying of the political leaderships of larger local authorities, though for this to be effective some initial (crowdfunded legal counsel may well be needed).* In any event, I will be doing what I can at the upcoming Labour North West regional conference in a couple of weeks to put out material and glad hand a few people who might actually listen. Support is welcome.
In the meantime, in the light of critical comments I have had online to date in various fora, I thought it might be useful to provide a bit of detail of why the Sustainable Communities Act is so different from other local government/localism legislation, and thus why it is the right vehicle to challenge the core ‘Brexit means Brexit’ assumption.
To do this, i need to be clear on the Sustainable Community Act process (and I speak as someone who has invoked it and gone through the process). It goes like this:
1) A local authority submits to central government a proposal for additional devolved powers, in the interests of the well-being of the community it serves, and on the basis of widespread consultation (probably a local referendum). In this case, the proposal would read something like:
That local authorities be accorded the power to continue to meet all conditions for full membership of the European Union, in the event that Article 50 is invoked.
The rationale for this, as a way of allowing central government to step away from the Brexit abyss, has been set out in my previous post.
2) It is likely that the proposal would be refused. However, this is not the end of the story, because the Act then allows a local authority to send the proposal to the ‘selector’, which currently is the Local Government Association), asking that the proposal be re-submitted for consideration.
3) If the LGA approves re-submission, this is where section 6 of the Statutory Instrument to the Sustainable Communites Act kicks in:
After receiving a submission with reasons from the selector under regulation 5(4)(c) and (d) the Secretary of State must— (a) publish the submission of the selector with its reasons; (b) consult and try to reach agreement with the selector before making a decision as to whether or not to implement the submitted proposal, in whole or in part….(my italics)
This is important, because for the first time in English law, there is a legal requirement on the Secetary of State, on behalf of central government, to do more than simply say ‘yes’ or ‘no’.
To refuse to “try to seek agreement”, simply because the centre may not think Brexit is a matter for local government, would be unlawful, and open to legal challenge in the same way as the need for parliamentary assent for Article 50 trigger is being challenged.
Moreover, triggering of Article 50 while a Sustainable Communities Act proposal is still in play would also be challengeable, with the result that Article 50 might be delayed as a matter of compliance, allowing more local authorities to join a campaign to allow them to remain in the EU, until a point came where the government’s will to pursue Brexit, in the face of legitimately organised expressions of local will (and on the basis of much clearer information than in June 2016), started to erode.
* I don’t think legal counsel would provide any greater clarity than I do here, but it will create a sense of respectability, and go a long way to persuading local authorities to study their options carefully (options which do not actually cost anything to pursue other than legal officer time)