Introduction
Chapter 2 discusses the place of local government within the Irish political and administrative system and refers to features such as:

These factors have influenced the direction of local government reform over the years. Building strong local democracy requires those factors to be recognised while seeing the potential benefits that greater trust between central and local government can bring to Ireland.

It has been said that a feature of Scandinavian local government is the mutual trust between central and local government, and that this is a factor which has promoted the devolution of functions from the centre to local government in that part of Europe. It is also said that this trust has grown from the long tradition of consensual politics in the Scandinavian countries. While Irish economic success is built on a 20 year old model of partnership, the fundamental relationship between central and local government in Ireland has not changed dramatically. It has been pointed out that local government itself is not directly represented at the national partnership level – this may be significant.

The ending of the dual mandate was designed to provide clear definition to the roles of national and local politicians. This has happened, but it has not been accompanied by significant devolution from the centre to local government. Lack of greater devolution should be considered as an opportunity cost suffered by central government which should be freer to concentrate on issues that are of national and international importance.

Even where there is strong mutual trust between central and local government it is natural that tensions will arise from time to time due to different national and local perspectives. Resolving these differences is an ongoing part of the political work of government (local and national). On occasion there are national and E.U. legal obligations which need to be complied with. Ensuring local compliance, while at the same time seeking to strengthen local democratic decision-making, can be a conundrum and is a key challenge.

These issues and relationships are central to the debate in this Paper.

The Nature of the Relationship between Central and Local Government
The relationship between local government and central government in Ireland operates on a number of distinct levels.

Government Departments use a mixture of traditional command and control instruments (legislation, regulation, directives etc), influencing instruments (control of finance) and co-operative instruments (consultation and joint working etc) in their relationship with local authorities. National government and local government work closely day-to-day to achieve mutual goals and, for the most part, the working relationship between senior officials on both sides is very positive. In recognition of the need to ensure close co-operation, more formal structured relationships have also been established between the County and City Managers’ Association and the management team of the Department of the Environment, Heritage and Local Government.

Above that again, there are the many formal and informal connections at political level which work through Ministers, the Houses of the Oireachtas and individual Oireachtas members, which all have a bearing on the relationship between national and local government.

There are also a number of collective arrangements for local authorities themselves to share services, advice and research. The Local Government Management Services Board provides support to the local authority sector in the areas of human resource management, industrial relations and management services. The management services remit is carried out by the Office for Local Authority Management through the provision of a range of executive, research, secretarial, and other support services to the County and City Managers’ Association. The Local Government Computer Services Board provides strategic support for local authorities in the area of information technology development. It assists local authorities to develop IT strategies to underpin their business needs and to implement appropriate solutions. Both bodies were established under the Local Government Services (Corporate Bodies) Act 1971.

The Minister and Department also maintain a close relationship with the 3 local government associations which represent councillor interests.

Forging a New Relationship between Local and Central
One of the fundamental objectives of the current process is to build on past reforms by strengthening the democratic aspect of local authority governance. The directly elected mayor of cities and counties is proposed as the primary vehicle to achieve this. A regional mayor with strategic powers in Dublin will also become a significant national figure. These potential changes pose a challenge to a number of interests:

In more specific terms, Government Departments would have to consider new ways of working with local authorities.

It is not difficult to envisage that directly elected mayors will also form a significant collective local government interest in the future. Such a development is likely to alter the current relationships.

It will be important to ensure that the various collective arrangements referred to above are fit for purpose for the challenges ahead. It is too early to be definitive about the impact of the initiatives set out in this Paper. As with all significant change, it involves moving away from established comfort zones. New relationships will not settle immediately but will evolve over time. The reforms suggested by this Paper are likely to pose a challenge for politicians and administrators over a lengthy period.

The Common Good and the Implementation of National and EU Law
This Paper suggests that greater powers and responsibility should be granted to councillors and directly elected mayors. However, where additional powers are given to elected representatives, mechanisms need to be found to ensure that local councils meet their legal obligations in the exercise of those powers.

One of the criticisms of central government in recent years is that functions have been removed from councillors where difficult issues have arisen. However, this approach allows local councillors to shirk responsibilities and reinforces the idea that Irish local government is weak and incapable of responsible decision making. This negative feed-back loop needs to be reversed.

The removal of powers has not happened without reason: the State (at both central and local government) is subject to many obligations laid down by national legislation, E.U. law and decisions of the superior courts.

All E.U. Member States share the dilemma that, as contracting parties to the E.U. treaties, it is the Member State that is liable for any failure to fully implement E.U. laws. At the same time internal legal/constitutional arrangements grant autonomy in many areas to lower tiers of government.

Some Member States, even those with the greatest devolved power structures – such as the Scandinavian countries mentioned above - appoint prefects at a regional level to ensure that local authorities comply with national obligations.

Ireland has dealt with a number of problem areas by removing powers from councillors and granting them to the manager to ensure compliance with national obligations.

In a number of cases the manager is given power to act where councillors fail to adopt measures as required under legislation (e.g. Traveller accommodation, ²⁹ and development plan adoption within time limits).³⁰ In the case of waste management, reserved powers to adopt waste management plans were totally removed from councillors and granted to the manager.³¹

In most cases, local authorities and central government work together to implement new obligations. Where problems arise, it is not solely the fault of local authorities. Local authorities often complain that central government does not provide sufficient resources (in finance and staffing) to meet the demands at local level which arise from E.U. Directives or other national initiatives. There is also an argument to be made that individual local authorities are not given sufficiently clear, or binding, targets to inform them of the contribution they must make to ensure that Ireland’s overall national obligations are met. Absence of clarity can allow individual local authorities to shirk responsibilities.

The zoning of land and compliance with National Spatial Strategy objectives and Regional Planning Guidelines are further areas where tensions arise. Until recently Ministers were reluctant to intervene in decisions made at local level to zone land. This has changed recently with the use of directive powers by the Minister, under the Planning and Development Act 2001, to require a small number of local authorities to come into line with national and regional policy.

Options for Change
A number of options below are suggested as a way of improving the relationship between central and local government and yet at the same time ensuring that local authorities operate within the constraints of higher level legal and policy obligations.

Working Collectively with the Department of the Environment, Heritage and Local Government
There has been a move in recent years away from the traditional command and control approach by the Department of the Environment, Heritage and Local Government. The linkages between the CCMA and the Department allow many initiatives to be progressed as part of a process of engagement and in line with the spirit and requirements of Regulatory Impact Assessment. (That is not to say that more directive approaches cannot be used where appropriate).

This process of engagement requires constant effort to ensure that real results come about from this engagement, so that good initiatives or ideas are followed up and implemented. The Department of the Environment, Heritage and Local Government will continue to work with the CCMA to ensure that these structures deliver to their potential.

Working Collectively with All Relevant Government Departments
The Department of the Environment, Heritage and Local Government, as the ‘parent’ Department for local government has a particular relationship with the sector. However, with the reorganisation and expansion in function of Government Departments over the years, local authorities now deal directly with a significant number of other Departments including Transport; Community, Rural and Gaeltacht Affairs; Justice, Equality and Law Reform; Arts, Sport and Tourism; Enterprise, Trade and Employment; Education and Science; Social and Family Affairs, as well as with some key offices such as the Office for Children. It would be useful for all relevant Departments and Offices and the local government sector to engage collectively at a high level, in a structured way, to consider issues of common concern.

Such an engagement would help to bring a consistent approach to common issues such as funding rules, procurement etc. It would also assist Government collectively to appreciate the challenges facing local authorities, and it could address areas of overlap and duplication. In turn it could assist local authority long and medium term planning by providing for a greater exchange of information on Departmental funding and policy proposals. It may also assist in pursuing the objectives of integrated public services on the ground.

An initial forum between the CCMA and relevant Departments might scope out the form of any more structured ongoing arrangements.

The Implications of New Initiatives
Where initiatives are being introduced by central government which impose new obligations on local authorities the implications of those obligations should be clearly set out. This is in line, in any case, with the principles of Better Regulation and the requirements to carry out Regulatory Impact Assessment.

In particular, any additional costs for local authorities should be set out. This does not necessarily mean that such costs must be provided for directly by central government, but it should help clarify how the obligations are to be met and how resources are to be prioritised. In many cases, new obligations can be integrated into existing operations without creating significant additional burdens. Efficiencies in procedure and use of ICT can often minimise costs.

Assigning Clear Targets to Local Authorities
Where it is appropriate, it should be possible to assign particular targets to individual local authorities when new initiatives are being introduced. For example, Ireland has very onerous national waste management landfill diversion targets. These are translated at local and regional level through Regional Waste Management Plans. If decision making powers are to be given back to councillors in relation to waste management planning, it would be important that councillors are aware of the individual targets that each council is legally obliged to meet.

Where regional targets need to be agreed by several councils, consideration would need to be given to ensuring that refusal by one council does not undermine adoption of a regional plan. Perhaps, in line with the concept of shared services, it would be possible to have joint meetings of all participant councils (or alternatively the Corporate Policy Groups of those councils) where policy decisions are binding on all participant councils. In any case, it would be expected that directly elected mayors would give leadership to such major decision making in the future.

Other areas where Ireland must ensure compliance with EU and national targets include water services, habitat protection and ground water protection. There is a need for clear national prioritisation to meet the targets involved and for an alignment of local government priorities with national priorities. In this regard, it is important to build up a common understanding of the issues, the reasons for pursuing certain priorities, and the targeting of resources at those priorities. There should be room for negotiation between central and local government in allocating national targets on a regional or local basis, building on the structures of co-operation which already exist between the Department and the CCMA. Mechanisms to ensure that priorities are actively pursued – after being agreed - would also need to be considered.

Helping Local Government to Help Itself
One reason, perhaps, that Government has bypassed local government when considering the delivery of new services is that inevitably smaller authorities do not have the resources to carry out every task to the standards required. One way of overcoming this is to pool resources, to work across boundaries, and where appropriate, to work on a regional level.

Institutional resistance to pooling resources is understandable, but will have to be overcome to allow local government to perform more functions and at a higher level. There are good examples already in place, such as the National Roads Authority regional design offices. These offices combine the resources of individual local authorities coupled with the strategic direction from a centralised core of expertise and have been very successful in delivering the roads programme. Such models can also be applied for other programmes, such as the water services programme, and could be seen as a driver towards implementation of important national priorities as set out above.

It is also in the interests of local government to act collectively at national level, to share experience and to articualte the corporate local government perspective in a collective manner. At present these objectives are achieved through the offices of the CCMA, LGCSB, LGMSB and OLAM, as outlined above. It is opportune that the operation of these structures is being reviewed so that local government collectively obtains the optimum benefit from the resources which are available to it.

The Role of Legal Adviser and Council Compliance
There is a perception by some councillors that the role of the local authority’s law agent is to back the recommendations of officials rather than guiding the actions of members. Law agents are, or should be, impartial advisers to the institution of the local authority, not to either side of the managerial/public representative divide. However, the perception mentioned above is reinforced by the provision in the local government code (Section 132 Local Government Act 2001) which allows councillors to seek their own second opinion in relation to the exercise of reserved functions. The position of law agent within local authorities is also unclear. Some local authorities employ full time law agents while others rely on outside solicitors.

It is suggested that in future each county and city council should appoint a chief legal adviser, possibly for a set term of office. This office could be recognised in law. The chief legal adviser would have an obligation to provide legal advice directly to the relevant decision maker, i.e. to the manager in the case of a managerial decision, to the mayor in the case of a mayoral decision and to the elected council, through the mayor as chair, in the case of a reserved decision.

It would be the role of the legal adviser to advise on the compliance of all relevant decisions with the law. There would be an obligation on all decision makers, in turn, to act within the terms of the advice given. This role would be analogous to the role played by the Attorney General at Government level.

Such a mechanism would facilitate the removal of managerial default decision making powers in the case of policy decisions and returning them to the political system. If default decision making powers are still required (in areas such as planning, Traveller accommodation and waste management) decisions should rest with the mayor and not the manager as at present.

Redefining the role of legal adviser and new reporting structures would obviate the need for a separate right to seek outside legal opinion.

Detailed consideration would need to be given to this proposal, having regard to the different arrangements which apply in different local authority areas, the need to avoid creating an overly expensive or bureaucratic legal architecture, and to the fact that most local authority legal work is routine executive work.