Alexander Bowen: Underestimate local government at your peril – it can push back. We might want to learn how

Alexander Bowen is an MPP-MIA student at SciencesPo Paris and St Gallen specialising in public health, and a policy fellow at a British think tank.

How did the US state of Florida manage to reduce its unemployment related payroll taxes from $319 to $50 or Wisconsin save $455mn in healthcare expenses? How did dozens of other Republican pre Roe v Wade being overturned attempt to restrict abortion?

The answer: administrative burdens – using paperwork not law to achieve policy.

In Florida it meant creating an unemployment benefit website that was so terrible only 11% of eligible people could use it. In Wisconsin it meant expanding reapplication cool off periods and creating a spurious waste fraud and abuse commission. Concerning abortion it meant implementing TRAP laws that on the face of them improve safety but in practice serve only to shut clinics down – rules like minimum corridor sizes or admittance privileges (though some of these were struck down by the US Supreme Court in Whole Woman’s Health v. Hellerstedt).

American conservatives have been at it for decades, and as a trend it’s best expressed in Moynihan and Herd’s Administrative Burdens; Policymaking By Other Means, a book that should be on the top of the reading lists for anyone interested in government and its functioning, that details painstakingly, in its four hundred or so pages, how the execution of laws can be used in essence to create new laws.

It’s not just America’s right that has been legislating without legislating either. In Abundance, the latest fad read for America’s techno-left, its authors too detail how environmental laws intended to allow communities to hold up new oil drilling or ensure sufficient parking (the so-called mandatory parking minimum) can be used to frustrate new renewable energy projects or new housing.

Inadvertently, weaponising administrative burdens against themselves was the reason the Biden administration was able to, with an $8bn budget, install only seven electric vehicle chargers in 2 years. 15 per cent of new jobs being apprenticeships, prioritising ‘marginalised localities’, 40 per cent of funds going to ‘communities of colour’, domestic procurement, paying prevailing local wages, ex prisoner hiring prioritisation, unionisation initiatives, net zero goals, their efforts at ‘Everythingism’ meant the ability of the government to actually deliver on what it intended to do was nullified.

Why should this matter to Britain? Well aside from the old adage that when America sneezes the world catches a cold, it is directly relevant to the elections we just had. We have a planning system that is far more bureaucratic and allows for far more state-control than anything the Americans could dream up – and that planning system is now in large parts of England directed by Reform or vulnerable Conservatives.

Maybe then it’s time to learn this: that the British planning system designed to frustrate house building need not be used solely for its intended purpose. Building Preservation Notices, House in Multiple Occupation Licensing, Use Class Violation, Improvement Notices, Emergency Prohibition Orders can each be used to, if not prevent, at least slow down the kind of building changes that are needed as part of the government’s policy of distributing illegal immigrants to hotels nationwide.

Worried about a new Serco site in your local area? What Abundance and Administrative Burdens teach us is that whilst it won’t be perfect, and might not ultimately be successful, in slowing down projects there is a chilling effect. Years of litigation, paperwork, and bureaucracy can cause such an obstacle that given future profit expectations they might not even attempt it in the first place.

A hotel conversion? Each unsuccessful material change of use complaint can add to costs and slowly on the margins through reducing potential profit reduce supply. We’ve seen it on the housing market already and on the local migration-housing level it just might work.

There have been four big legal challenges so far – with one victory for Great Yarmouth won in its attempt to stop illegal immigrants being housed in seafront hotels for violating its Local Plan, and three losses from councils unable to fully substantiate their points. One having lost for being temporary support and so not covered under the sections they were seeking to use (though how temporary something that has lasted four years is remains be seen), and the other for councils being unable to fully substantiate their claims.

If a council wants to win then they’ll need to start using their power to collect data – but even without winning the challenges still fulfil some policy purpose.

There is of course too the power to refuse compliance – to use local government as a stick to attack the centre with. Now historically this might not have been wise, the centre can restrict funding or abolish you outright like Margaret Thatcher did with Ken Livingstone’s GLA or as she did in response to the Liverpool-led rate-capping rebellion, but something quite fundamental has changed. That something is that the odds of success in local government are now reaching near-zero.

There is little reason to believe Reform will be any more successful in local government than anyone else despite ‘slashing diversity officers’ or whatever the magic plan to turn around councils is, and plenty of reason given the calibre of many of their leading candidates to believe they will, if anything, be less successful.

In that formulation there is little reason not to go full steam ahead with using councils to bully the centre – either the centre gives in and you achieve success, the centre meekly refuses and there is a PR victory, or the centre in some form or another abolishes you and you are absolved of any governing responsibility. In that formulation too, there is little reason for beleaguered local Conservatives not to try it.

What could refusing compliance look like?

There is at one-end an extreme, a response of “If they want illegal migrants in Camden let them be housed in Camden, not here”, a response that amounts to copying the strategy of Florida Governor Ron DeSantis and physically transporting the illegal population somewhere else and in doing so making it Westminster’s problem. At best the problem is resolved, and the council may take full credit, at worst the centre is made to take a position and left to force on local people what locals do not want – and in either case you may just about achieve a spillover effect of negatively polarising and signal boosting the Greens in Labour’s heartlands.

Outside of that extreme, there are options detailed by Melisa Tourt – issuing enforcement notices against hotels housing illegal immigrants, withholding complementary services to facilities, refusing to administer or distribute asylum related funds, or as detailed previously weaponising the burdens of the administrative state against itself. Here too the worst case is the centre retaliating by appointing commissioners instead – absolving the council of its responsibility.

Much of local government is a signalling game and creative methods above standard practice send the strongest signal possible – think of Johnson’s prorogation of parliament, formally illegal, yet in practice the most successful move that government made, sending a signal that killed off the fledgling Brexit Party. Johnson, or at least Cummings, realised that game theory could be applied to the Commons.

These are, in essence, efforts to kill off at the local level the supply side – yet a competent local government strategy here could well try to deal with the demand side too. Restricting hotel conversions, or what have you, may well be blocked – but dealing with wider migratory pull factors like the gig-economy through enforcing electric bike laws or basic standards on ghost-kitchens, properly administering social care, or weaponising inspections for casual labour like carwashes cannot be. It’s worth remembering too that many of the new devolution deal Mayors are Police & Crime Commissioners.

A local government that wanted to could do at least a little.

Some of that will require new resourcing – something that, largely thanks to social care mandates, essentially no council can provide.

Central government knows that.

Control of the purse typically dictates power, yet with Mayoral Development Corporations, for the first time, on a big scale, has accidentally given local leaders the ability to work to create what constitutes their own purse. MDCs could be used to fast-track housing or energy projects, in exchange for some sort of higher local government revenue share that could be spent on their non-statutory priorities.

Pushed to its absolute limit, an MDC could be used to deghettoise areas with new housing projects, and new security paid for by the revenues it generates. It needn’t mean having a Robert Moses of the Midlands but there is scope for someone to push up against the limits of what we assume to be possible in local government. I don’t suppose anyone in India thought Gurgaon, a 1.2mn person city built by the private sector, was possible and yet nevertheless it exists and is the 3rd richest place in that country.

I say this then – underestimate local government at your peril (not least now much of it has nothing to lose).

It can impose burdens, it can wage war with the centre, and sometimes it can be constructive.