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Welcome to Sharpe Edge, Sharpe Pritchard’s local government legal hub on Local Government Lawyer.

Sharpe Edge features news, views and analysis from our team of specialist local government lawyers working at the heart of the latest legal developments. Sharpe Edge platform is also the only place where local government lawyers can get e-access to two law books by our Head of Local Government Rob Hann: The Guide to Local Authority Charging and Trading Powers (‘LACAT’) and The Guide to Local Authority Companies and Partnerships (‘LACAP’).

 

                                                                                                  

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Climate emergency or climate catastrophe?

Icons CourtRob Hann asks how central & local government departments and councils can work together more effectively to combat the challenges to achieve net zero by 2050.

Sadly, we only have to watch the news to see that Planet Earth is now suffering from the ravages of climate change: floods in China, raging forest fires across Canada and much of the West Coast of the USA, drought in Australia – and similar events elsewhere – blight the lives of millions across the globe. It is not so much an emergency as a catastrophe that is happening here and now, triggered by a build-up of greenhouse gases and carbon emissions in the atmosphere over the past 100 years or so. The UK is, of course, not immune from these changes. Scientists warn that Britain will experience frequent extreme rainfall and regular 40C heatwaves, even if the World meets the most ambitious targets for limiting global warming UK to suffer regular 40C heatwaves and more extreme rainfall (The Times. 29.7.21).

So what are central and local government in England doing together to help combat climate change?

The National Audit Office (NAO), the organisation that holds the public sector to account regarding the way in which public finances are spent, is perhaps not the most obvious place to look for a forensic critique of the way central government is behaving towards local government in order to achieve ‘net zero’ carbon emissions by 2050. However, this is exactly what the NAO’s most recent report focusses on: see “Local Government and net Zero in England”.

Anyone hoping to find some crumbs of comfort here about central and local government bodies working seamlessly together will be sadly disappointed. Reading the NAO report, the word ‘challenging’ probably best describes such joint arrangements to date.

The NAO emphasises that central government needs to be much more proactive with setting local authorities’ clear roles and responsibilities, to help councils better contribute to reaching the UK’s net zero target. On the other hand, local government and individual local authorities appear to be doing some great things, despite the bureaucracy, lack of clear leadership, and absence of dedicated funding that they are confronted with. The Local Government Association (LGA), the representative body for local government in England, has recently published some case studies and guidance about initiatives undertaken by councils to combat climate change and carbon emissions, which makes impressive reading.

Clearly, local authorities have a crucial role to play, because of the sector’s powers and responsibilities for (not least) waste, local transport, planning, and social housing. Whilst some government departments have supported local authority work related to net zero through targeted support and funding, the NAO report highlights serious weaknesses in central government’s approach to working with local authorities on decarbonisation. This stems from a lack of clarity over local authorities’ overall roles, piecemeal funding, and diffuse accountabilities. This lack of clarity undoubtedly hampers local authorities’ abilities to effectively plan for the long-term, build skills and capacity, and prioritise effort.

Some of the NAO’s key findings are summarised as follows:

1. Central government has not yet developed with local authorities any overall expectations about their roles in achieving the national net zero target.

Central government has yet to determine, in consultation with the sector, local authorities’ overall responsibilities and priorities in achieving the national net zero target, and whether any of these might require a statutory basis. Without a clear sense of responsibilities and priorities the concern is that local authority action on net zero is not as coordinated, targeted, or widespread as it might need to be.

2. The Government has not yet set out to local authorities how it will work with them to clarify responsibilities for net zero.

Whilst noting (some) government departments have made (some) attempts at interacting with (some) councils through workshops and the like, the NAO was not convinced that, overall, such engagement has been sufficiently strategic or coordinated to determine – in partnership with the sector – a clear role for local authorities on the national net zero target. In other words, this needs to be significantly ramped up – and quickly!

3. While the exact scale and nature of local authorities’ roles and responsibilities are to be decided, it is already clear that they have an important part to play.

The NAO expressly recognised the potential contribution the local government sector and individual local authorities could make with decarbonising local transport, social housing and waste, because of their powers and responsibilities in these sectors. More broadly, there could also be a key role for local authorities – through investment and procurement decisions, planning responsibilities, and direct engagement with local people – to encourage and enable wider changes among local residents and businesses to reduce emissions.

4. Overall, local authorities find it hard to engage with central government on net zero.

Local authority representatives reported a lack of coordination across government of departments’ different requirements. The NAO recognises that this poses a significant risk of inconsistent goals and messages.

5. Funding is a critical issue for local authority work on net zero.

Despite the Government’s financial support to the sector during the pandemic, the financial position of local government remains a cause for concern, and for many local authorities spending is increasingly concentrated on statutory duties. The scale and nature of the funding requirements for local authorities will partly depend on decisions about their role in reaching the UK’s statutory net zero target. At a minimum, local authorities will need the spending power to decarbonise their own buildings and the social housing they own, and to build the skills to incorporate net zero into their existing functions such as transport planning.

One of the recommendations in the NAO report to combat some of the deficiencies identified, is for the Government to consider the case for a statutory duty for local authorities on net zero. This would be a good starting point as otherwise this will remain a ‘nice-to-have’ discretionary function, ranking below other mainstream local government ‘must-do’ statutory duties. However, such a statutory duty must be accompanied by a clear route for individual local authorities to access significant new funding for replacement or renewal of existing infrastructure which relies on fossil fuels or does not take full advantage of renewable energy sources.

Central government departments such as DEFRA, MHCLG, HM Treasury and DFT, have proved in previous decades that they can work effectively both across central government departmental boundaries and with the local government sector to deliver major investment programmes. For example, the funding of the whole local government PFI programme was delivered in this way, with senior representatives (top civil servants) from government departments coming together through the Project Review Group (PRG) and chaired by HM Treasury to select appropriate local authority projects for PFI funding. Could the PRG process be dusted down and replicated, to help streamline and fund appropriate local authority infrastructure projects aimed specifically at reducing the carbon footprint and/or net zero target?

Finally, to combat the climate catastrophe, which is now upon us, everyone with skills to offer needs to engage in this effort to help find urgently required solutions. Sharpe Pritchard is doing its bit. We have wide ranging skills in the environmental law field. The firm, for over a century, has developed significant expertise with Parliamentary drafting and other legislative development work. In fact, firm helped many local authorities to promote private bills sponsored by local authorities in the 1950’s to try to address air pollution. Those efforts helped with the promulgation of the Clean Air Acts. Sharpe Pritchard partner, Steve Gummer, has published recently this article Big Problems Need Radical Solutions – Time to Play Monopoly with District Heating? – Sharpe Pritchard putting forward new ideas for securing buy-in to cleaner district heating schemes, building on experiences elsewhere in Europe.

In the lead up to COP26 in November, Sharpe Pritchard will be holding workshops and webinars and engaging with its many local authority and public sector clients to harvest best practice. We will also be launching Guidance Documents for local authorities so that they can consider whether they are doing enough and getting access to all of the funding available.

Public/private sector agencies and experts, working efficiently and effectively together towards a common aim (net zero emissions) can only help in the challenges to come and with the fight to avoid further man-made climate catastrophe.

Rob Hann is the head of local government at Sharpe Pritchard LLP


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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.

LACAT BookFREE download!

A Guide to Local Authority Charging and Trading Powers

Written and edited by Sharpe Pritchard’s Head of Local Government, Rob Hann,

A Guide to Local Authority Charging and Trading Powers covers:

• Updated charging powers compendium          • Commercial trading options

• Teckal ‘public to public’                                    • Localism Act

FREE DOWNLOAD

LACAT BookAvailable to buy:

A Guide to Local Authority Companies and Partnerships

An invaluable, comprehensive toolkit for lawyers, law firms and others advising
on or participating in Local Authority Companies and Partnerships”

- Local Authority Chief Executive

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