S. H. Bailey

TAKING LOCAL GOVERNMENT SERIOUSLY: DEMOCRACY, AUTONOMY AND THE CONSTITUTION

Given their democratic credentials and geographical and cultural proximity to those on behalf of whom they act, one might expect local authorities to occupy a pivotal position in the democratic life of the country, pursuing distinctive agendas appropriate to the needs and mores of their respective areas. This, in turn, might be expected to form part of a virtuous circle in which the obvious importance and responsiveness of local government incentivises the participation of individuals in local politics and elections. Within such a model, substantial intervention by the centre in local government affairs would be as inappropriate as it would be unnecessary; the quality of local democracy would both act as a sufficient control upon local authorities and render questionable the legitimacy of interference by central government. This (some might say Utopian) vision of local government is reflected in the European Charter of Local Self-Government, ratified by the United Kingdom with effect from 1 August 1998.1 However, it is some distance from present reality. It is well-known that local democracy in the UK is far from healthy an issue which central government (through parliamentary legislation) has sought to address on several occasions in the recent past2 and to which it has recently returned.3 In this paper, we argue that attempts to strengthen local democracy are likely to be successful only if they form part of the virtuous circle sketched above. No amount of reform in relation to such matters as electoral arrangements and the structure and accountability of councils is liable to yield results if the latter have and are perceived to

Public authority negligence revisited

Following on from earlier consideration of this issue by the same authors in the 1980s, this article examines the principles governing the negligence liability of public authorities as articulated in recent cases, and in particular the decisions of the House of Lords in X v. Bedfordshire , Stovin v. Wise and Barrett v. Enfield London Borough Council . It concludes that the various attempts to establish special principles to govern such liability have been misguided, and that the courts have proved too willing to reject claims on the basis of questionable policy considerations, to the extent that a blanket immunity might appear to have been established in some contexts. Ultimately, this approach has brought the United Kingdom into conflict with its obligations under the European Convention on Human Rights. It is argued that ordinary private law principles provide a wholly appropriate basis for reconciling the legitimate interests of public authorities with the need to accord justice to individual litigants.

THE PAGE v . SMITH SAGA: A TALE OF INAUSPICIOUS ORIGINS AND UNINTENDED CONSEQUENCES

Page v Smith [1996] AC 155 was one of a series of landmark decisions of the House of Lords that concerned the extent of negligence liability under English law for the causing of psychiatric harm. Page was controversial when it was decided and hard to analyse, and has caused a range of difficulties in subsequent litigation. There have been suggestions that it should be reconsidered by the Supreme Court. The purpose of the present article is to provide a contemporary evaluation of the decision in Page and to review it with an eye to its possible overruling or modification. In the first half of the article we critically examine the original litigation, and in the second half we consider the impact the decision has had in subsequent cases. Throughout the article we draw upon the significant corpus of judicial and academic criticism which has built up around the decision. We conclude that Page should now be discarded, and replaced with clearer, more rational principles, and that in the meantime the courts should continue to distinguish Page where the circumstances are sufficiently different and its application would produce injustice.