Public Law within Government Sustaining the Art of the Possible T.P.B. Rattenbury 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page i Public Law within Government This page intentionally left blank 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page iii Public Law within Government Sustaining the Art of the Possible T. P. B. Rattenbury 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page iv © Timothy Rattenbury 2008 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2008 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 13: 978–0–230–55302–6 hardback ISBN 10: 0–230–55302–8 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Rattenbury, T. P. B., 1952– Public law within government : sustaining the art of the possible / T. P. B. Rattenbury. p. cm. Includes bibliographical references and index. ISBN 0–230–55302–8 (alk. paper) 1. Public law–Great Britain. 2. Administrative law–Great Britain. 3. Local finance–Law and legislation–Great Britain. 4. Public law. 5. Administrative law. 6. Local finance–Law and legislation. I. Title. KD3930.R38 2008 342.41–dc22 2007052979 10987654321 17 16 15 14 13 12 11 10 09 08 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page v To Diana, with love and enormous appreciation. To Jay and Carrie, with love. And to the countless public officials, elected and unelected, who do their honest best. This page intentionally left blank 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page vii Contents Preface xi Chapter 1 Introduction 1 Chapter 2 The Ultra Vires Rule: Its Substance and Significance 17 A. What? 20 B. Why? 31 C. Who? 35 D. How? 38 E. From law to practice 42 Chapter 3 Out With the Old: The 1980 Budget 47 A. Setting the scene 48 B. Strategies of restraint 49 C. The shape of things to come 50 D. Rents and rates, the old way 51 E. Confronting penalties 54 Chapter 4 In With the New: The 1981 Budget 58 A. New law: the first encounters 58 B. Rents and rates: the well-worn path 63 C. A parallel universe 65 D. Capital: the ‘happy accident’ 69 E. The final shambles 75 Chapter 5 A Heightened Awareness: The 1982 Budget 80 A. Absorbing Bromley 80 B. A swift juridification 84 C. A swifter dejuridification 87 Chapter 6 Leftward, Ho: The 1983 Budget 91 A. Turning round the ship of state 91 B. Paving the way to a lawful budget 95 C. Rents: a 0% increase? 97 D. Rates: the shell game 98 E. Applied ingenuity 100 F. Progress report, 31 March 1983 105 vii 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page viii viii Contents Chapter 7 Pressing Ahead: The 1984 Budget 109 A. Intimations of a rate-cap 110 B. Running silent 112 C. Deflecting the pressures 113 D. Judicial review? 114 E. Budgets: the evolving legal analysis 116 Chapter 8 Rate-Capped and Resistant: The 1985 Budget 121 A. The challenge of law and policy 122 B. A productive almost-moratorium 124 C. The ‘united strategy of non-compliance’ 128 D. The district auditor’s verdict: a very close call 144 Chapter 9 Aftermath: The 1986 Budget 149 A. Induced dejuridification 150 B. Rate-capped again 151 C. Capital: the battle of wits 156 D. Bridging the gap 159 E. A semblance of normality? 160 Chapter 10 Victim of Circumstance: The 1987 Budget 163 A. Seizing the moment 164 B. Policy shift: local elections and the ‘new realism’ 165 C. 22 July 1986: the fateful day 167 D. The rate-cap fiasco 168 E. The capital calamity 172 F. The ‘Sale of the Century’ 175 G. The turning tide 180 Chapter 11 ‘Policy-Capped’: The 1988 Budget 183 A. The general election and the mid-term review 184 B. The best laid plans … 185 C. The ‘policy-cap’ 192 D. Last minute reprieve 193 E. An almost old-style budget 195 F. And an almost old-style dissent 197 Chapter 12 Out With the Old, Again: The 1989 Budget and 201 Beyond A. Running a tight ship 202 B. Playing it safe 204 C. The ghost of budgets past 205 D. Internally displaced discretion 207 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page ix Contents ix E. Going out with a bang 209 F. And so to bed 213 G. Postscript 214 Chapter 13 Conclusion 216 Bibliography 235 Cases Cited 243 Index 245 This page intentionally left blank 9780230_553026_01_prexii.pdf 1/17/08 11:39 AM Page xi Preface Students and scholars of public administration and public law are often frustrated by the lack of solid information about the workings of public law within government. That these are important is attested to by the steady stream of judicial review cases, sometimes of great political, social or human significance, in which particular acts or decisions are held up to close judicial scrutiny and rulings are made about whether or not, in the circumstances, public authorities have overstepped their bounds. Thus much is learned about the substance of public law. Far less is learned, though, about how it works, and the latter is the focus of this book. My aim has been to examine public law in its natural setting, as an everyday part of government operations, and there to explore the variety of its contributions to the political process. As source material I have taken a particularly interesting chain of events, full of legal and political variety, that unfolded in the recent past of English local government, when the Thatcher government tried to restrain local authority spending, and some local authorities did not like it one little bit. Public law was central to their responses. I have been fortunate that one of the local authorities involved has assisted by allowing access to its internal documents and to the former senior officials most closely involved. This has made the study far richer than it could otherwise have been. Huge thanks are due to the local authority concerned, as well as to the three officials – ‘the Treasurer’, ‘the Solicitor’ and ‘the Deputy Solicitor’ – whose assistance has been invaluable. ‘The Treasurer’, in particular, has spent many hours meeting with me, and many more reviewing rough and less rough drafts of the text. Also huge are the thanks I owe my wife, who has read and reread, encouraged and suggested, and now knows far more about the ultra vires rule than should be expected of any self-respecting professor of English. Others who have provided valuable support or comment at critical times include Keith Hawkins, John Goodrich and the reviewers of both my proposal and the typescript. Thanks also to the editorial and pro- duction staff at Palgrave Macmillan, who have been efficient and accommodating. If, despite the accumulated efforts of all the above, errors or infelici- ties remain … I blame my wife, naturally!! (Just kidding, dear.) xi This page intentionally left blank 9780230_553026_02_cha01.pdf 12/8/07 9:07 AM Page 1 1 Introduction Not so long ago, in a Labour-controlled local authority somewhere in England, there was a problem. The council had ambitious plans to tackle the serious social deprivation in its area, but plans like these cost money, and the central government in London, Conservative at the time, thought that local authorities should be spending less money, not more. This was not just a polite difference of opinion. The local authority, and others like it, had strong views about what they should be doing for their areas. The government’s views were also strong, but were very different. The government, however, had the power to con- vert its wishes into laws that the local authorities would have to obey; it was to use this power repeatedly. Faced, then, with what was to become a ‘sustained battery of legislative and fiscal measures aimed at securing their compliance with the wishes of central government’ (Carmichael 1995: 292), what, if anything, could the council do to realize its own ambitions for its area? It all depended on the ultra vires rule. The words ultra vires (‘beyond the powers’) and expressions like the ultra vires ‘rule’, ‘doctrine’ or ‘principle’ are found in the public law of many countries and are central to this book.