Local government in Scotland

Preface

When as a Scholar of Glasgow University and a Research Student of the London School of Economics it was necessary for me to choose a subject for special investigation, I at first thought of selecting some definite point connected with the local administration of Scotland, and endeavoured to find an elementary book sketching in outline the machinery of Scottish Local Government as a whole. But no such book was in existence, and I decided in consequence to devote my time to the collection of such information as was necessary in order to understand merely the main points in the development and present organisation of Scottish local bodies, hoping thereby to make it easier for future workers to set forth more fully the political and economic problems involved in the study of local administration. The results were embodied in two sets of lectures, delivered at Glasgow University and the London School of Economics, and their kind reception determined me, after considerable hesitation, to prepare them for publication. I am fully conscious that there are many faults in my vi

PREFACE.

work : lack of legal training has been a drawback, and it is not possible in so short a period as two years to become acquainted with all the complexities of the subject. But I would ask my critics to remember that the book is not intended as an exhaustive treatise, but as an introduction for the student to a field hitherto curiously neglected, and as a readable book for the general public. Hence I have not striven after the exhaustive and precise accuracy of a legal handbook. Had I done so, my pages would have been so laden with detail and with lists of exceptions as to be unreadable. At the same time, I have done my best to present in accurate outline a general view of the institutions under examination, and I have placed in Appendices A and B information which may be useful to the serious student.

I wish to express my indebtedness to those members of the staff of the London School of Economics who assisted me in my work, and especially to Mr and Mrs Sydney Webb. Many of the general conclusions arrived at were suggested by Mr Webb's lectures on Local Government, and in the arrangement of the material I have also followed to a large extent the plan adopted by him. Only when Mr and Mrs Webb's forthcoming book on the Local Government of England appears will it be seen how much the present work owes to their teaching.

I wish also to acknowledge the kindness of the councillors and officials (too numerous to mention by name) who frequently interrupted their work in order to give me information concerning the practical side

PREFACE.

Vll of local government, and to show me its concrete developments. I was greatly helped by the courtesy shown me, and this book owes much to the facts related to me by those practically engaged in local administration.

My thanks are also due to my father, Mr J. B. Atkinson, for reading the proofs and suggesting amendments, and to Miss B. L. Hutchins for verifying several references.

It should be observed that the book was written in Scotland, and all references to different sides of the Border are to be understood in this sense.

MABEL ATKINSON.

2 Devonshire Terrace, Newcastle-on-Tyne, Jan. 8, 1904.

I

Contents

CHAP. PAGE

I. THE PRESENT IMPORTANCE OP THE STUDY OP LOCAL

GOVERNMENT ..... 1

Chapter II. What Is Local Government?

Perhaps it would be well at the outset to understand clearly what we mean by local government. What is the distinction between local and central government ? The term means, of course, government of a particular place. Now in every seaport town there is stationed a customs officer who superintends the receipt of revenue there ; to some extent he takes part in the government of the place. But we see at once that this is not local government. The inhabitants of the town or their council have no voice in his selection, no control over his action ; and the town receives no part of the revenue derived from the customs which it is his duty to superintend. Consider the difference in the position of the manager of the municipal water-works. He is appointed and dismissed by the council ; he works under its direction ; any revenue derived from the sale of water is expended exclusively on that locality. Shall we then say that local government implies the management of the affairs of the locality by the inhabitants thereof through their elected council ? This is the form which local government tends to take throughout the British dominions, and to some extent in foreign countries also. But it is far from being the only possible form. There may

LOCAL GOVERNMENT IN SCOTLAND.

be no council ; the inhabitants may assemble in a general meeting at stated times and may manage their affairs directly, without the intervention of representatives. This method is followed in the smaller parishes of England, where the parish meeting is the governing body, and in the townships of New England. To some extent it prevailed in Scotland until 1894 : the parochial board in landward (i.e., rural) parishes until that date comprised all holders of land in the parish above a certain small amount. We see then that local government may be carried on without a council, by the direct action of the inhabitants.

Again, a council may exist, but it need not be elected by the people. The council in many Scottish towns prior to 1833 was self-electing — i.e., the old council chose the new. There was no reference to the will of the people. Or, again, the council may be appointed by some external power. The justices of the peace in England prior to 1888 had many functions to perform which are now transferred to the county councils. They were appointed from among the resident country gentlemen by the central government. Yet the great German writer on administration, Dr Rudolph Gneist, praised the system as the most perfect example of local government that he knew.

In some Scottish burghs up to 1892 the bailie and council were appointed by the " superior," or descendant of the landowner from whom the burgh had obtained its charter. This was, for example, the case in the burgh of Rosehearty ; but yet it would be hard to deny that Hosehearty enjoyed a system of local government.

Thus we see there are other methods of organisation besides the elected council : local affairs may be

WHAT IS LOCAL GOVERNMENT?

managed by a general meeting of the inhabitants, or certain persons may be appointed for the purpose by the old council or by the central government. In every case, however, the inhabitants in some way or other are responsible for the government of the locality. We would not consider it local government if the appointing authority habitually set up a managing body, members of which had no connection with the locality, and were in no way controlled by the will of its inhabitants. The management of police in London, for example, is not a branch of local administration, for the people of London, as such, do not control it. The county council has no voice in the appointment of constables nor in the traffic regulations, for the London police management is a branch of Home Office administration.1

Another possible criterion of local government is that each locality should bear the cost of its own administration. Thus each parish is required to pay for its own poor and the education of its own children, each county and burgh for its own roads. The cost of national services, on the other hand, is borne by the whole country and defrayed from the taxes, not the rates. Kent would be first attacked if an invasion of England came about, but the people of Kent do not pay the expenses of Kent's extra fortifications. The whole country contributes equally. If, however, for any reason any county has unusual difficulty in making its roads, that extra cost has to be met from local resources.

It will usually be found that a place bears the cost

1 The exceptional treatment of the capital frequently occurs in police matters, and is easily justifiable. The capital belongs to the inhabitants of the whole country as no other town does. The inhabitants of Glasgow may look on the state of Dundee with indifference, but both Glasgow and Dundee are interested in the management of London.

LOCAL GOVERNMENT IN SCOTLAND.

of its own local administration, but by no means invariably so. Such a criterion is, in the first place, losing its importance by our system of " grants in aid," the growth of which is gradually removing from the locality the exclusive cost of certain services, which still continue to be administered locally, and which is rendering untrue the statement made above, that each parish maintains its own poor and educates its own children. This complicated question is to be discussed later on.1 But the suggested criterion does fit in other cases. The Londoner pays police rates though he may not manage his own police, and we have in Scotland, conversely, certain educational bodies — the secondary education committees — charged with the administration of sums handed over to them by the Scottish Education Department, and not drawn from local sources at all. But the committees are chosen from the inhabitants of the locality, and manage its affairs, and it would certainly be straining at a very small gnat to hold that the work of such a committee is not part of the local government of Scotland. Moreover, signs are not wanting that in the future more money will be drawn from imperial sources, while more work, at least in the carrying out of details, will be given to the local bodies ; therefore the second criterion will probably be of less and less importance.

So we conclude that the distinguishing mark of local government is the management of the affairs of each locality by its inhabitants, whether by means of a general meeting (or primary assembly), or by elected representatives, or through appointment of certain persons among the inhabitants. Commonly along with local management goes local taxation, but not invariably. For the one may exist without the other.

1 See chapter xvii.

WHAT IS LOCAL GOVERNMENT?

We have attacked the question of what is local government from the point of view of organisation or structure ; we can also approach it from the standpoint of function. We can ask not only how is a local body constituted, but also what special work does it do. What division of government is distinctively marked out as " local " in opposition to "central" ? And here we may notice a curious fact. We are all convinced of the superiority of our system of local administration ; we congratulate ourselves on the Anglo-Saxon genius for self-government, and feel much contempt for the centralised nations of the Continent. But whenever we come across a man anxious for reform in any special branch of local government, we almost invariably find that he also desires that it, or part of it, should be transferred to the central government. Thus public-health experts are convinced that public health, being essentially a matter of importance to the whole nation, should be cared for by officials appointed and paid by the national administration. Road reformers are also now demanding that our main roads should be removed from the charge of burghs and counties and transferred to a department of roads after the model of the French system. Poor-law reformers urge that the care of the poor is essentially of national importance, and should therefore be undertaken by the nation at large ; more moderate men suggest that the State should take over certain branches of poor-law work — e.g., the maintenance of pauper lunatics — leaving the remainder to the parish councils. Some enthusiasts even insist that as the provision of the police is really national and not local, it ought to be transferred to the central government. In this latter case, however, it is usually zeal for an ab-

LOCAL GOVERNMENT IN SCOTLAND.

stract ideal, not experience of concrete wrongs, that gives rise to the opinion. There is little real discontent with our police system. In some quarters, again, the belief is gaining force that education is a national service, whose cost should not be laid on the localities. And now see the result. Police, public health, poor law, education, roads, — these comprise all the more important divisions of local government, and in the case of each, some thinkers advocate centralisation. What would be left for our local bodies to do ? The provision of lighting the streets would be almost the only function remaining to them.

The truth is that the criterion which such thinkers employ is false. We do not intrust local affairs to the local body because they concern the locality exclusively. There is practically no branch of administration which is not of more or less importance to the whole nation. A burgh or county whose police force is inadequate in numbers or efficiency will attract criminals and tramps from all parts of the country ; similarly with a parish where casual out -relief is given with too great laxity. It is of the utmost importance to the Glasgow or Dundee of to-morrow that the school boards of the Highlands should to-day properly educate the children under their charge. The whole of Scotland owes a debt to Glasgow for promptly stamping out the plague. Leith has practically got rid of scarlet fever within its boundaries, but every now and then sporadic cases occur when the infection is imported. If all local authorities were as vigilant as Leith the disease might disappear entirely. The inhabitants of Paisley ought to be keenly interested in the work of the sanitary authorities of Renfrew ; for they draw their milk-supply from the country, and if the dairies of Renfrew are ill-regulated,

WHAT IS LOCAL GOVERNMENT?

then the children of Paisley will die from diarrhoea. Again, a man may live in Edinburgh ; but if a cyclist, the condition of the roads of Mid-Lothian or Haddington is a matter of considerable interest to him. There is practically no branch of local government which does not concern the whole country. Even lighting is perhaps not an exception, if it be true that every gas-lamp is equivalent to one constable in keeping public order. And therefore the argument proves too much. We cannot band over all branches of local work to the central government, — for two reasons.

In the first place, one may venture to doubt whether there is really such a superiority of central over local administration. Greater uniformity will certainly be attained ; and possibly, if the service in question is greatly improved by the employment of highly paid experts, greater efficiency also. For both these reasons the inspection of mines and factories is rightly a part of the central administration, and it is largely in the hope of securing experts that the centralisation of public health is advocated. But in many matters the importance of local knowledge and of local criticism is easily underrated. The work of outdoor poor relief, for example, and the speedy discovery and removal of cases of infectious diseases, seem essentially fitted for local administration.

But perhaps the second reason is still more important— i.e., the indirect influence which the habit of taking part in public affairs exercises on the characters of the citizens. Certain Continental writers on administration trace foreign disability to work parliamentary government to the absence of a system of local self-government. It is insisted that the power which Britons show of grasp of details, of self-control, and of timely compromise in their management of imperial affairs, is essentially a result of the people's long training' in government of their localities. It would, indeed, be difficult to overrate the importance to the country of that habit of unpaid voluntary public service which is produced by our system of local government. Doubtless the motives with which a man enters a town or parish council are not always very high, but the fact of being responsible, in however small a degree, for the public welfare has an ennobling influence even on a man of somewhat low moral calibre. And, again, it has a good effect on the man whose moral ideals have outrun his mental grasp. Many a wild enthusiast has been tamed, and his impracticable schemes reduced to realisable measure, by practical experience of administration. It may even be suggested that one reason why we have in this country no Socialist party as such is that it is easier for would-be reformers through our system of local government to become acquainted with actual conditions of public work. Hence instead of a Social Democratic party, we see our old political parties taking up much of what is wisest and most capable of realisation in the Collectivist ideals. Whether or not there is any truth in this speculation, it yet remains certain that the more important feature of our self-government is, — not necessarily that it produces better results than might be attained by a more centralised bureaucratic system, but that it trains up citizens in public spirit and in self-reliance. Modern conditions may perhaps render necessary a greater employment of paid expert officials, but it should always be our aim to combine this, as far as possible, with the unpaid voluntary service of elected representatives ; and in order to secure the best men

WHAT IS LOCAL GOVERNMENT?

both as officials and representatives it is worth while, even at the cost of greater mechanical efficiency, to preserve for local management many important branches of administration.

Our conclusion, then, is that it is not possible to distinguish between " local" and "central" government on the ground that the former concerns the inhabitants of a particular place exclusively, and the latter the whole country. We must entrust to the local body much which is really of national importance, and the criterion must be simply practical convenience, and may vary under different political and economic circumstances. In a country recently subdued or disaffected it will be unwise in the extreme to give the charge of the police to local councils. Thus in Ireland and in South Africa police management is a branch of central government. One very important consideration is the condition of means of communication. Till thirty years ago, for example, the management of prisons was confided to local authorities. But when it became possible to move prisoners quickly and easily from one part of the country to another, it was seen that greater efficiency would be attained by a few large prisons under the central government than by many small ones under local management ; hence the control of prisons was transferred to the Home Office. Again, take roads : at the beginning of the century, when roads were the only means of communication between different parts of the country, many important roads were supervised, if not directly managed, by commissions appointed by Parliament. And it was evident that the course of development was leading to a national service of main roads. But this was checked by the rise of the railway system. The roads were no longer the only

LOCAL GOVERNMENT IN SCOTLAND.

channels of through communication. They sank into merely local instruments. The condition of the roads in any place was of importance only to the inhabitants of that place, and therefore there grew up an axiom that each burgh and each county should defray the cost of its own roads. Now matters are changing again. The increase in cycling and motoring is bringing back our roads to something approaching their old importance, and there is in consequence an agitation for the nationalisation of main roads. It is not, therefore, possible to draw any hard and fast rule concerning the relative spheres of the local and the central governments. The distinction will depend on the historical development of the country in question, on its economic conditions, and specially on the state of the means of communication. When we live in an age of rapid economic development, we should hold ourselves ready to review our system of government at any time. And by so doing we cast no reflection on the wisdom of our ancestors. Their methods were suited to their day, and were framed for its conditions and its needs. Our conditions are different, and we shall better reincarnate in ourselves the wisdom of past ages by fitting our legislation to the new needs than by clinging tenaciously to past institutions. To take a concrete instance, Scotland has owed much to her system of parish schools, and to the fact that the instruction given therein was in no way restricted to elementary subjects. And doubtless at the time of their foundation, when roads were few and the country-side unsettled, no better method than the parish schools could have been devised for securing a primary education for every child, and secondary instruction for those fitted for it. But now the aims and methods of education are changed ; and the

WHAT IS LOCAL GOVERNMENT?

parish is no longer the best area even for primaryinstruction, still less for secondary and technical. Scottish citizens will enter most fully into the spirit of John Knox and his followers by thinking out and setting up a new system, in which a larger area than the parish is taken as the educational unit of administration.

The foregoing discussion has, it is hoped, given the reader some conception of the meaning of the term " local government." In form a governing body to be properly " local" must consist of inhabitants of the district, and must have the management of certain branches of administration in so far as they relate to the affairs of that district. Generally, but not invariably, this body has the power of levying taxes on the inhabitants of the area over which it bears rule for the whole or part of the expenses it incurs. We can lay down no hard and fast rule concerning the functions of the local governments, but usually the following duties are undertaken by the local administrations : —

1 . Police ; but in London and in Ireland this is

a branch of the central government.

2. The making of by-laws and regulations, and

frequently the issuing of licences to ensure obedience to them.

3. Public health ; but in Italy this belongs to the

central government.

4. Poor law ; but in many parts of France there is

no legal provision for the poor at all.

5. Education, especially primary.

6. Roads and means of communication.

7. Provision of recreation and means of enjoyment. In large towns the governing body frequently undertakes a mass of miscellaneous work — e.g., housing,

B

LOCAL GOVERNMENT IN SCOTLAND.

supply of sterilised milk, of common lodging-houses, of tramways and trams, of libraries, baths, &c. But most of these fall under one or other of the preceding heads and are only extensions of the ordinary work, due to the special need for collective action in the crowded mass of human beings gathered together in a modern city. Thus it is easily seen that the provision of common lodging-houses may be undertaken as a branch either of police or public - health work, and unless they pay their way, they may be looked on also as a part of poor-law administration, and as an adjunct to the poorhouse.

These functions, then, are delegated to the local authorities. But the latter are not permitted simply to perform them as they think fit. It must be carefully noted that a local body is bound within the limits of the law which constitutes it. We often hear critics asking why the town or county councils do not do this or that : often enough the reason is that under the law they have no power. Thus we sometimes wonder why the authorities do not deal with the hideous advertisements which are such a disfigurement to the landscape ; but in order to enable them to do so there must be inserted a special provision in an Act of Parliament.1 Again, to take a recent famous case : the London county council ran buses to connect two tramway termini. The law courts decided that the power to run tramways did not include the right of providing buses ; consequently the buses had to be discontinued (although admittedly meeting a public need), greatly to the

1 By an Act of 1903 burghs are enabled to pass by-laws regulating the display of advertisements. County councils have not yet obtained this power, and country solitudes are still liable to disfigurement by huge boards extolling blue boluses.

WHAT IS LOCAL GOVERNMENT?

disgust of every one save the shareholders in bus companies. The laws under which local authorities work fall into several classes.

1. Many burghs in Scotland possess peculiar powers granted to them by their charters, and not dependent on the statute laws of the realm. Thus Haddington has the right of levying a customs duty on all corn brought into the town for sale. Many burghs still possess their ancient burghal property, the " Common Good," and of this they may make any use that is for the advantage of the general body of citizens. Thus Glasgow from the Common Good is about to endow a lectureship in Social Philosophy ; Edinburgh keeps a town observatory. In neither case is the power so to use the Common Good dependent on statute, but on charter rights. The rates could not be applied to any such purpose.

2. Public General Acts, applying necessarily when passed. For example, the recent Public Health Act applied to all health authorities, and made it incumbent on them to make arrangements for the notification of certain infectious diseases. These Acts fall mainly into two divisions, though different parts of the same Act may fall into different divisions.

(a) Some Acts lay down the structure or constitution of the authority. Thus the Local Government Act of 1894 completely altered the constitution of the parochial body. But it made no alteration in the function of administering poor law. So too with the Town Councils Act of 1900. It altered the structure of burghs, specially a certain class — police burghs. It made little difference in the duties which they had to perform.

(b) In other cases functions alone are dealt with.

This is well exemplified by the Public Health Act of 1897. The bodies administering public health remained the same in constitution as before the Act, but their powers and duties were greatly increased. That portion of the Poor Law Act of 1845 which dealt with duties or functions has been little changed to this day. The part of it which laid down the constitution of the parochial boards has been completely swept away.

3. Private and Local Acts. Certain bodies, specially the larger burghs, find themselves confronted by problems which for their successful solution require powers exceeding the general law. In Glasgow, for example, the terrible prevalence of overcrowding compelled the authorities to obtain special powers1 for preventing it ; accordingly in Glasgow the sanitary inspector has power to enter houses below a certain size, at any hour of the day or night, in order to ascertain that the number of its inhabitants does not exceed the legal limit. In Edinburgh, again, the town council has been specially anxious to keep its beautiful city from disfigurement by advertisements, and after some difficulty the council has got power1 to license hoardings and to prevent the erection of unsightly boards calling one's attention to the merits of Morrison's Pills or Jones's Wash-all Soap.

In other instances private bills are promoted in order to obtain compulsory powers for acquiring land. This is the case with regard to gas-works or water-works, or electric - lighting installations. Here the town council requires a private bill, — not in order to alter its constitution or increase its governing power, but rather to enable it (exactly as if it were a trading company) to compulsorily acquire land for its gas-pipes

1 Recently extended to all town councils. See preceding note.

WHAT IS LOCAL GOVERNMENT?

or telephone wires, and to frame by-laws governing the use of gas or tramways. Of private bills of the latter order there are many in Scotland, but of the former very few. In England almost every big borough has its own private act, and so its constitution or powers differ from those laid down by the general law. This fact adds immensely to the difficulties of investigating the subject. In Scotland, on the other hand, only six burghs have private acts — namely, Glasgow, Edinburgh, Dundee, Greenock, Aberdeen, and Paisley. All the other burghs are governed by the general laws.

Together with private acts may be classed Provisional Orders. The distinction is that in the case of the latter the necessary inquiry is made and the order granted, not by Parliament, but by a Government department. Thus a provisional order for the installation of electric light is granted by the Board of Trade, subject to confirmation by Parliament. The provisional order system is cheaper and quicker than the other ; but it has the disadvantage of being greatly hampered by the law establishing the procedure. It is not possible, for example, by provisional order from the Board of Trade, to obtain compulsory powers of acquiring land. There has, however, been a recent change in the law, making the provisional order system, in so far as Scotland is concerned, the usual form of procedure. But the precise meaning and extent of the change will be discussed later on.1

4. Midway between general acts and private acts stand what are known as' adoptive acts. It is often desirable that local bodies should have certain powers, but should not be compelled to exercise them unless at the wishes of the communities which they govern. To