This Member’s Bill was introduced by Andy Wightman MSP. It proposes to incorporate the European Charter of Local Self-Government into Scots law.
The Charter is an international treaty of the Council of Europe signed by the UK in 1997. The Council of Europe is an international organisation founded in 1949 to uphold human rights, democracy and the rule of law in Europe. The Charter sets out some principles to protect the basic powers of local authorities.
Extra legislation is needed to give the international treaty the same status in Scots law as domestic laws. That is the purpose of this Bill.
Under this Bill, the following must be compatible with the Charter:
- actions that Scottish Ministers take within their devolved powers
- laws that are in the legislative competence of the Scottish Parliament
It will mean action can be taken in the courts to challenge these actions and laws if someone believes they may not be compatible.
You can find out more in the document prepared on behalf of Andy Wightman MSP that explains the Bill.
Why the Bill was created
The member in charge of the Bill, Andy Wightman MSP, has introduced the Bill to strengthen the status and standing of local government.
Andy Wightman supports the principles of the Charter. He wants to make sure they are routinely applied by the Scottish Government.
He also wants to make sure that people who think those principles are not being followed can do something about that. This includes raising their concerns in a Scottish court.
You can find out more in the document prepared on behalf of Andy Wightman, MSP that explains the Bill.
The Member in charge of the Bill, Andy Wightman MSP sends the Bill and the related documents to the Parliament.
Related information on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Additional Member in charge
Mark Ruskell MSP is the additional member in charge for the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
Item 4 is our first day of evidence on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. I welcome the following, who are all attending remotely: Professor Chris Himsworth is emeritus professor of administration law at the University of Edinburgh, Professor Richard Kerley is professor of management at Queen Margaret University, and Alison Payne is research director at Reform Scotland. Thank you all for being here today and for your written submissions.
For your information, I point out that we have allocated an hour or thereabouts for this session, and have a number of issues to discuss with you, so I ask you to keep your answers as succinct as possible.
Andy Wightman, who is the member in charge of the bill, is also a committee member. Under Parliament’s standing orders he will, in effect, take part in the evidence session as a non-committee member. In practice, that means that I will allow him to come in for questions to panellists only at the end, if time allows.
Before we start, I offer some brief technical information. There is a prearranged questioning order, so I will call members in turn to ask their questions for a block of up to nine minutes. It would help broadcasting staff if members could indicate to whom in the panel the questions are addressed. We might have a short amount of time for supplementary questions at the end.
As there are three people on the panel, witnesses should please indicate clearly when they wish to answer a question—for example, by raising your hand. Do not feel that you need to answer every question fully if your views are generally in line with points that have already been made. Please give broadcasting staff a second to operate the microphones before you speak. Thank you.
We now move on to questions; this question is for all the witnesses. To what extent and how does the bill support further devolution of local government, and what legislative barriers remain?
Alison Payne (Reform Scotland)
Thank you very much, convener, for this opportunity.
Reform Scotland sees the bill as being a good first step on a long-awaited journey towards greater decentralisation. It represents important recognition of the value of local government. We come at it from the point of view that this has to be just the first step—that we are recognising the value of local government, which will lead to decentralisation of additional powers and responsibilities and to a balancing of the relationship between Holyrood and local government.
Thank you. Professor Kerley?
Professor Richard Kerley (Queen Margaret University)
I am not getting any—[Inaudible.]
Okay. I ask broadcasting colleagues to mute Professor Kerley, and I will bring in Professor Himsworth.
Professor Chris Himsworth (The University of Edinburgh)
Thank you very much for the invitation to be here today. My answer to the question is that the bill forms part of the future, as I see it. It must be broadly accepted—it has been accepted for many years—that there is an issue in relation to the strength and capacity of local authorities in other European countries to do what they need to do. In Scotland, that has been a familiar weekly refrain, in my experience, since the end of the 60s into the 70s and the reorganisations of that time. The call has been sustained throughout the calls for devolution, of course, through the McIntosh commission and into the existence of the devolved Parliament and devolved Government in Scotland. There has been the constant theme about the adoption within the working constitution of means to support the autonomy of local authorities.
As to the bill’s particular response to the problem, although one has inevitably to take a somewhat pragmatic view, it seems to me that incorporation of the charter is currently at the top of the pile, for various reasons on which I could elaborate. It has the advantage of already being there; it contains obligations that are already binding on all the relevant bodies within the UK—certainly, within Scotland. The text has been available since 1985 and has been available within the UK since 1998. The bill is, to my mind, a good route forward. I am sure that there will be more to say about that, as we proceed.
I am sure that you are right. Does the bill leave any other legislative barriers in the way of further devolution to local government?
If I have interpreted the question correctly, I say that the bill opens the way, as is necessary, to more legislation going in the direction of further empowerment—I am hesitant to call it “liberation”—and of increases in the autonomy of local government. It stands to encourage all moves in that direction.
Thank you for that. I have another question. South Lanarkshire Council referred to challenging historical decisions on local government financing. Is the bill an opportunity to challenge past Scottish Government decisions on council funding? Do you think that that is what it should be for? I will stay with you, Professor Himsworth, as you are on screen.
I must pause a moment to say that the device that is adopted in the bill is to make the articles of the charter available in Scotland. They would become schedules to the act, were the bill to be passed. The consequence of that—we could expand on this—will be the obligation that will be placed on the Scottish Government to ensure that it acts compatibly with the principles that are laid down in the charter. The bill would go further by making failures to act compatibly challengeable, ultimately, in court.
Of course, decisions by Scottish ministers are challengeable in court on other grounds, including on human rights grounds and all the other familiar grounds for judicial review in the Scottish system. The bill would add to the grounds for challenge.
Connected to that are questions about how likely challenges are, whether challenges would be successful, whether challenges would be a good thing for the system overall and, in particular, whether they would cost undue amounts. Those are all questions that should rightly be taken into account. I see that they are, in the first instance, addressed very fully in the policy memorandum that accompanies the bill.
Those are thoughts that anyone would have around the creation of new obligations on public bodies, including on the Scottish ministers.
I will bring in Professor Kerley—I think that he is back—and then come back to Alison Payne. I am sorry. Professor Kerley does not sound any better.
I will ask Alison Payne the same question about South Lanarkshire Council input on being able to challenge historical funding decisions. Should that be what the bill is for? How would that work, where there are existing protocols? It is not just the Government that decides; it works alongside the Convention of Scottish Local Authorities, and so on.10:30
We hope that it would be more the start of a new relationship. I would think it would help to improve the relationship. There have definitely been issues in terms of how we manage things and how things have been in the past. There have been considerable disagreements over a range of matters, including finance, as the convener mentioned, in relation to South Lanarkshire.
I hope that the bill would help to create a new relationship and a new balance. If it ends up becoming clogged up in previous grievances, that will not lead to a new and better relationship that looks from the start at what powers can be devolved, and how we can move towards proper decentralisation. That is what we want the journey to be, rather than there being so much looking backwards.
I appreciate that.
We will move on. Professor Kerley says that he thinks that he can be heard now. Sarah Boyack is the next member to ask questions, so perhaps she could ask Professor Kerley one.
I thank the three witnesses for providing evidence in advance; it has been really helpful to us. I have some brief follow-up questions about those submissions, on which I hope that Richard Kerley might be able to come in.
In a section of your submission, you talk about dilemmas. How could the bill be improved? You talk about areas in which you think that improvements could be made. Could you set out how the bill could be strengthened to make it more effective?
Professor Kerley? No.
Convener, I was also going to ask Chris Himsworth that question, because he, too, mentioned the need to improve the bill in a number of ways. Perhaps he could comment on that while we wait for Professor Kerley to come back in.
Thank you for that question, which probably principally addresses the points that I made in my submission. Perhaps inappropriately, I talked about the notion of expanding the “scope” of the bill; by that, I meant the coverage of the bill.
I will explain where I was coming from when I made those observations. The job in hand is to give effect to the charter in broad terms. Some people have called it a charter of rights for local authorities. The charter speaks in positive terms about the things that should be achieved on behalf of local government, but it is largely silent on which bodies are the principal threats to local authorities’ autonomy and powers, and how those threats should be addressed. It is simply the manner of presentation of the charter.
It is pretty clear in all the documents associated with the charter that the principal threats—I do not mean this in a deeply unpleasant way—to local autonomy inevitably come from central Government, however that is defined. There is no doubt that, in very large measure, it is central Government, however that is defined, that must be the body that has the principal responsibilities in this area. In Scotland, inevitably, we think of the Scottish Government and the Scottish ministers.
What has to be borne in mind is that the charter is anxious to preserve the autonomy of local government, and therefore to repel any threats to that autonomy, wherever they come from. I will give an example from the charter. At a couple of points, it refers specifically to the requirement that local authorities should be consulted on matters that affect them. There is such an obligation in relation to their financial arrangements and their financing, as well as a more general obligation to consult on their functions and the discharge of those functions. It seems inevitable to me that not just the Scottish Government or the Scottish ministers but other bodies that are close to central Government in Scotland, or even bodies that are a little bit more distant but which nevertheless have dealings with local authorities, would be expected to respect those obligations under the charter. That is what the charter would seek.
For instance, there are, of course, health authorities in Scotland. There are bodies such as Police Scotland and the Scottish Police Authority, among many others. It is a perfectly familiar idea that, when they do things, they should consult local authorities as necessary. The charter would reinforce those obligations.
The approach that is taken in the bill—which I think is a perfectly legitimate one—is to focus almost exclusively on the obligations of the Scottish ministers. I think that that is right, because it is they who have the principal responsibilities in this field. There is no doubt about that. The whole structure of the bill is about imposing obligations on them and their response; to an extent, it is also about enforcing that response. I was simply inviting discussion of whether that coverage of the bill could be expanded to cover the obligations of other public authorities in Scotland. That is what the little questions in my submission were inviting discussion of.
I understand that one or two of the suggestions that I made—perhaps I was just flying kites a little—raise questions about the legislative competence of the Parliament. There may be a lot of very good prudential reasons for avoiding any difficulties in those areas, and I can well understand that the Parliament would wish to avoid inviting completely unnecessary—to my mind—challenge on competence grounds. I am not at all pressing for that.
On the other hand, if other public bodies that are completely within the competence of the Scottish Parliament were to be brought within the embrace of the bill, I think that that would not be a wholly bad thing, for the reasons that I have given. Of course, I can see that that would complicate the bill in some measure.
Sarah, Professor Kerley is on audio only. Do you want to try him?
Yes. I appreciate Professor Himsworth’s comments. My question was about how the bill could be improved. I get the sense from Professor Kerley and Alison Payne that they strongly support the bill; I would simply like to know what strengthening elements they think should be added to it.
I am hoping that people can hear me now.
Yes, we can hear you.
Thank you. If I break up, I will be happy to write down the response.
I had not previously considered the case that Professor Himsworth made in his written evidence and just now about the incorporation of other Government agencies and bodies within the bill. That makes a lot of sense to me, but my starting point was simply that the adoption of the charter would be a marvellous way of showing respect and the long-sought-for parity of esteem in terms of the elected position of local authorities throughout Scotland. I think that it would be a reminder to members of the Parliament and Government ministers that decisions that are made and legislation that is created must take account of those different spheres of elected democratic legitimacy.
Personally, I would not go for a much longer, more complex bill. If what Chris Himsworth said could be captured in a clause, that would make a great deal of sense to me, but I would not go for a long detailed addition to the bill, or the use of schedules, that would attempt to delineate every possible agency. His point about bodies such as Police Scotland, the health boards and Education Scotland—which has recently got itself into a tangle with regard to what different local authorities are doing—is a very powerful one.
The issue is whether the bill delivers what Chris Himsworth suggested that it needs to deliver. Alison Payne, do you think that it needs to be amended or is it strong enough as it is?
Reform Scotland would agree with what Professor Kerley said about the importance of the bill creating a platform for respect and parity of esteem. We would certainly agree with Professor Himsworth—indeed, Reform Scotland has previously talked about the issues to do with health boards or Police Scotland and the overlap with local government, and how local government has gradually been squeezed out of other areas.
Those are definitely important issues that need to be considered. However, I would be concerned about anything that would overly complicate the bill. The bill is a good starting platform, and our priority would be to get the bill through. It would then be a question of what comes next and how we build those new relationships.
I know that time is tight, so I will ask two questions in one and the panel can then respond. My first question is about the strengthening of the bill. Would it be strengthened by the appointment of an overseeing commissioner? Also, what are your views on potential sanctions? To what extent might they be needed and what form might they take?
That is a very interesting question, which was raised in your earlier consideration of the bill. I do not favour the appointment of a commissioner, because I think that it would impede the simple direct measure of access to the legal process. We might refer a matter to a commissioner, the person concerned would then say yes or no, and the local authorities or other agencies concerned might then say, “We wish to challenge that as we believe we have a right to do”. Direct access to the legal system is a more powerful mechanism.
I have very little enthusiasm for sanctions of any kind to be levied against public bodies, whether it be the Parliament or the Government. The nuclear form of sanctions is debarment from office, and we abandoned that a while ago, apart from in exceptional cases. What would we do—fine a public agency? If we did, we would simply be removing moneys from one agency to lodge, I presume, somewhere else.
So, neither commissioner nor sanction for me.10:45
We would largely agree with what Professor Kerley said. The importance is the symbolism of the legislation. We are trying to build a new relationship and, if it descends into sanctions and tit for tat, that is not where we want to go. It is about building a new respect agenda.
I think that I follow those remarks. As to a commissioner, I think that the offering of complaints systems—which is what that might become, in a way—across public authorities in Scotland has become something of an industry in recent years. Perhaps at the centre of this is the Scottish Public Services Ombudsman as a channel for entertaining complaints from different sources across the public services in Scotland. However, first and foremost, I would say that this is not appropriate business for the ombudsman, even though a general stance has been taken in recent years that, rather than further clutter the administrative environment, one should use the known resources available. I do not think that this is ombudsman work. I could elaborate on that, but that is my view.
Otherwise, I think that the directness of the imposition of the requirements and the compatibility obligations that the bill places on the principal target, the Scottish ministers, is the best thing.
As to sanctions, I am not quite sure what that means. Yes, of course, it could ultimately mean that steps taken by the Scottish ministers are incompatible with the charter and that something would need to be done about that. The courts could make what the bill calls a “declaration of incompatibility”, which would impose sanctions or obligations on ministers. It would not do so in a personal sense; they would simply, as ever, be institutional obligations on ministers.
I failed to mention historical challenges earlier. It is most unlikely that deeply historical challenges would ever be competent under the bill for various reasons. Access to the courts and access to judicial review to enforce the bill would be most unlikely to penetrate deep into the history of financial allocations but would have to be triggered pretty promptly if there were a complaint.
I have one question for each of the witnesses. Each of the questions is about whether the bill will have the effect that those who support it would like it to have.
Professor Himsworth made an interesting point about whether other bodies should be captured by this as well, for example if a city deal is signed by the UK Government, the Scottish Government and a local authority, and the local authority feels very aggrieved that the UK Government, for example, has failed to take into account the interests and the views of that local authority in which projects it will support. That is not a far-fetched example. Where would the bill help? The Scottish Government would be bound by the same agreement. Would it be the case that the only action that can be taken by an aggrieved local authority would be against the Scottish Government, even though in its view the fault would lie with the UK Government?
Those are, of course, difficult areas. My whole expanded talk about embracing, for instance, obligations on UK ministers raises the questions of competence that I raised earlier, and whether they were covered at all by the bill would depend on the bill’s terms. At the moment, they are plainly not and, therefore, the bill would make no direct contribution in that area.
In any event, it sounds to me as though the sorts of complaints that might be raised under city deal arrangements would be better dealt with under other forms. The only way in which the charter could be used to add anything directly to that would be by invoking its requirements that authorities are adequately funded and, for instance, that there are systems of equalisation and so on in place within the financing system. I suppose that there is an outside chance, but I would rate it no more highly than that, that notions of equalisation might enter into that debate.
I am not sure whether I have wholly answered the question, but I am happy to come back.
I think that it is about the legal jeopardy of the aggrieved action being undertaken by one public body but the only people that local authorities could take action against would be the public body that is bound in the law.
Leaving that to one side, I put a couple of questions in the chat bar to Professor Kerley when I was not sure whether he was going to get the audio. Obviously, Professor Kerley has answered the first of those by saying that he would not support a commissioner, and I would certainly agree with that.
My second question, for the benefit of the public record, is about the comment in Professor Kerley’s evidence—I am paraphrasing, so he should feel free to contradict me—that some of the language in the charter allows the Government to escape, by reference to national economic frameworks or other such phrases, from any real accountability. If that is his view, how does this become anything more than just a dead letter?
I have answered the first question orally, as you have just acknowledged. In relation to the second one, the point that I was hoping to make is that the systems of local government and, indeed, the democratic accountability, as we would understand it in the various parts of the UK, are very varied, given the number of countries that have signed up to the charter. The charter had to accommodate that in many different ways.
As I read it and as we see from experience in other countries, there is nothing to prevent a nation-state Government from taking action to change local governments or to vary the amount of responsibility or, indeed, the resources that are transferred through various financial schemes to different local governments, as long as they are done properly and legally under the legal framework in that particular country. I give the example of the reduction of local authorities in Sweden over a number of decades. Nothing freezes in aspic the current arrangements that exist.
I would not say that the charter is a dead letter. The point that I would want to make is that a course of action has to be justified, it has to be legislated for within the terms of the law, and preferably it has to be discussed and agreed with the variety of interests concerned with both local self-government and the totality of government and decision making in Scotland.
My scepticism about how effective it might be is probably informed by the last time I studied these things in the 1980s and the various challenges that there were between local government and the UK Government at that time about powers and changes.
My last question is for Alison Payne. If there is scepticism among people in local government about the impact that the charter would have, would it not be the case that other things—for example, the proposed full-time, properly remunerated posts for councillors—would be far more effective in enhancing parity of esteem and the effectiveness of local government to withstand the predations of national Government?
I do not think that it is one or the other. We would undoubtedly not say that the bill on its own is enough. It has to be a first step. It is an important signal. We feel that, over the course of devolution, powers have been centralised at Holyrood and we need more devolution. We need to look at local government and we need to value it more highly. There are a number of issues that you have highlighted, such as having full-time, remunerated councillors. How we strengthen local government certainly goes beyond just the bill. We would agree that the bill on its own is not enough. In our evidence, we said that this has to be only the first step.
There are a lot of things that we would like the Scottish Government to do, and Reform Scotland has for a long time called for looking at local taxation and other areas of power and how we give local government a far greater say in health and policing. Those issues all still need to be dealt with, but we still welcome the bill as an important first step.
Gail Ross (Caithness, Sutherland and Ross) (SNP)
That leads to my question, as I was going to ask Alison Payne about centralisation and how she saw the next steps. I will drill down a little bit further into that.
Alison, you talked about non-domestic rates and tax in your submission and you spoke about that just now. Are the reforms that you are looking for possible without the bill? How does the bill act as a springboard for local government to go on and have more parity of esteem, as I think Professor Kerley said? Professor Himsworth said that it is a stepping stone on a journey. Where does it fit in and would that journey take place without this bill?
I think that those reforms could certainly take place without the bill. At Reform Scotland, we have been calling for them pretty much since our creation back in 2008. However, the bill is certainly important as a stepping stone to reset the relationship between central and local government. The fact that it calls on the Scottish Government to report on its relationship, and how it has taken local government into account, is an important reminder of the importance of that relationship and the fact that local government should not just be put to the side. I hope that it will help to be a springboard.
There are issues that we need to consider, and the current pandemic has reminded us of that. We have the different levels. The current situation, both in health and in economic output, has been affected differently throughout the country, and we need our local authorities to be able to respond to that. The current economic climate also means that, together with this bill, hopefully we can begin to have a reset of that relationship between local and central Government in Scotland. The next stage that we would like to see is reviewing local government finance, for example, and properly looking to start decentralising powers.
Are there any specific powers, apart from non-domestic rates and tax powers, which you spoke about, that you would also like to see come to local government?
I apologise, convener, as I am going to get a little parochial here. What is your opinion on the size of some local authorities, such as mine, Highland Council? How can it be close to the people when it covers a landmass of more than half of Scotland?
Undoubtedly, there is a huge variance across the country, from Clackmannanshire to the Highlands, covering hugely different geographies and population levels. There are definitely a lot of different issues that can be considered and we are beginning to see that small local authorities are choosing to work together. We want to see things changing from the bottom up.
In areas where there is huge geography, the question is how we can bring decisions beyond the local government area. Whether it involves area committees or strengthened community councils, the question is how we can bring decisions closer to the people so that decision making does not stop at local government but goes beyond that. We need to have a full national conversation on how we re-engage people in local government.11:00
On your question about powers, we specifically mentioned in our evidence tax powers over council tax and business rates, but we would also look at how we can reinject a greater level of localism into policing. We now have just the one police body covering Scotland. How do we improve local government representation there? We have said before that there are things that we can do with health boards. We can at least pilot initiatives. Where health boards and local government cover the same areas, we can look at doing things and bringing things closer together.
There are a lot of things that we should be looking at to improve the structure of local government and make it more accountable to individuals and better engage the communities they serve. There can be a disconnect as to where responsibility lies and who is the person who should be accountable for decision making. Whose fault it is or who is to be congratulated on a policy is getting a wee bit lost. We need to have a broad conversation about local government in Scotland.
I endorse those sentiments. I have always seen the charter as making a principal contribution to the environment within which these issues inevitably arise, as they always have, between local authorities as represented by COSLA and central Government. It contributes to the debate by providing the standards. The charter embarks on a standard-setting exercise according to which the debate should be conducted. I suppose that it is a cliché nowadays to say that individual pieces of legislation or policy are never magic bullets. Nobody will claim that the incorporation of this charter is a magic bullet or the solution to all problems to do with local government in Scotland—of course not.
Potentially, the contribution that the charter makes to framing that environment goes well beyond being merely symbolic and visible only as utter generalities. For instance, to re-engage with the financial debate, article 9(3) of the charter insists on local government having available a source of revenue over which it has the power to determine the rate. The present arrangements are pretty precarious when measured against that test. Business rates have long since been taken out of the hands of the local authorities. As long as we have measures taken to suppress the freedom of local authorities to make council tax decisions at will, the power to determine the rate is in effect removed from them. Therefore, that shows that the charter seeks to provide a framework in which that familiar debate will continue to be conducted.
Gail Ross has raised some very interesting questions, some of which have, to my mind, long been quite hard to reconcile. Either you have one local authority for a very large geographical area that is sparsely populated—if you think that Highland is big, you should see some of the local authority areas in Australia, Canada and parts of the United States—or you have a number of small local authorities with very few people. The reality of that is that, in any collective discussion within the policy community in the broadest sense, Glasgow, Edinburgh, Aberdeen and Fife completely outweigh Nairn or wherever it might be.
There is a hard-to-reconcile balance in some of that, but I would hope that the committee will focus on this particular piece of legislation at the moment. There are many other things that we could do and I might suggest we do in relation to local government, but I think that the point that is being made by Alison Payne and Chris Himsworth is that we are helping to create more of a climate of a working relationship between central and local government if this bill is approved by the Parliament. I do not think that that stops us arguing for alternative courses of action on, for example, non-domestic rates and the forms of local taxation that we have for citizens and—I think that it is inescapable in some shape or form—for residential property, but I would like you to focus on this bill rather than on what we might otherwise do in a far larger bill, which arguably would be the province of the Government rather than a private member, with respect to Andy Wightman, to introduce. This strikes me as a member’s bill. It focuses on a particular aspect. I am moving my hands, convener, to show the wider context, and I think that that is in the spirit of such legislation.
Thank you. Gail, do you have a very brief question to ask?
I have a very small question for Professor Himsworth. On the back of the conversation about taxation, council tax and councils being given the freedom to set their own rates, how would the Scottish Government’s council tax freeze fit into that, if councils that want to set their own rates are then told that they have to adhere to a national policy?
That is one aspect of the constraints on local authorities that are operative now. The charter looks beyond issues such as the simple terms of national legislation when judging whether the standards have been met. In other words, it is far from sufficient simply to say that a particular section of the Local Government Finance Act 1992 authorises local authorities to decide freely on the level of the council tax rate. What is being looked for is the practical implementation of the charter. That has always been in mind when the other, international means for the scrutiny of the charter and its implementation has been undertaken from Strasbourg by the Council of Europe through the Congress of Local and Regional Authorities. It is looking all the time not merely at statutory frameworks for freedom but at the practical operation.
My observation was simply that the practical conclusion of arrangements, at the minute, leaves individual authorities without much wriggle room at all in the setting of their levels of funding. They have other charges available to them, of course, with which they may have greater freedom, but not much is there for the principal sources of revenue. It seems to me that the charter has always been there. This charter, even if not incorporated, has been available to be invoked by local authorities and COSLA and they have done so over the years. Incorporation would strengthen the ability for recourse to that principle in the charter, which would contribute to the framing of the debate about funding levels.
I have two points in relation to that specific question. The first echoes the point that I was trying to make earlier, which is that, if you look at the full list of signatories to the charter and those aspects of the charter to which they have committed themselves, you will find that there is considerable variation. Some of the signatories in the list are fairly interesting places, including Armenia, Azerbaijan and Andorra—you just start at A and find yourself looking at places very different from Scotland or the rest of the UK or France or wherever.
The second point is that I have always argued that the standstill on council tax—incidentally, I did not agree with it in many ways—was not technically a freeze. Rather, local authorities consented—unwisely in my view—to financial incentives to keep the council tax at a standstill level. That is why the amount of increase was fairly consistent with previous legal judgments. If local authorities collectively agree to something with the Government, it is questionable whether it can be said to have been imposed. In its latter stages, it became unpopular with local authorities and imposed, but I do not think it was ever initially a complete imposition. It was an agreement—historically, the word “concordat” does not have a lot to recommend it, but there you go. I will end there, convener.
Good morning, everyone. I have one short question, as I know that we are tight on time. What impact would the bill have on human rights and what may be needed to ensure positive outcomes?
The human rights side of things is very short. We do not see any problems with that. It is not something that we have looked into, so we have nothing to add on that bit.
I do not see that the bill has any negative impact on human rights at all. If we have greater clarity of relationships between different spheres of governance in the country, we enhance human rights, because we enable people to be clear about what powers and authority and responsibilities different bodies have. Then they have a greater sense of whether that is impacting on them lawfully and properly as opposed to just negatively or positively.
I agree with that. I referred a little loosely to this charter as a charter of rights for local authorities. I would see it in that respect as entirely complementary to the other rights instruments that are available internationally. There is an overlapping element if one were seeking one, and that is that you do not have to go far into the European convention on human rights to get to a right to vote. The notion that local authorities are, of course, locally elected authorities and that they secure their mandate, their legitimacy and their difference from all the other, appointed bodies through the right to vote is a parallel between the two systems, which I think is worth noting.
That allows Andy Wightman to come in with a question.
I have no questions, convener.
Thank you very much. Today we have seen a first. On that note, thank you very much for taking part. That completes the end of our questions for the first panel. Members of the panel can leave the meeting by pressing the red telephone icon. Thank you all very much for your participation this morning. I suspend the meeting for a panel changeover.11:14 Meeting suspended.
11:16 On resuming—
I am pleased to welcome our second panel of witnesses, who are attending remotely. Andrew Fraser is head of democratic services at North Ayrshire Council, and is representing the Society of Local Authority Lawyers and Administrators; Councillor Alison Evison is president of the Convention of Scottish Local Authorities; and Councillor Malcolm Bell is the convener of Shetland Islands Council. Thank you for attending today and for your written evidence.
We have allocated about an hour for this session. You may have heard my remarks to the previous panel: if you agree with what another panellist has already said, please feel free simply to confirm that rather than give a full answer.
Members will ask their questions in a prearranged order, with any supplementaries at the end if time allows. It helps broadcasting if members could indicate which panellists their questions are addressed to. Please give broadcasting staff a second to operate your microphones before you speak.
Councillor Evison, I believe that you have some brief opening remarks.
Councillor Alison Evison (Convention of Scottish Local Authorities)
Thank you, convener.
Almost three decades ago, the UK ratified the European Charter of Local Self-Government, which is an international treaty of the Council of Europe. COSLA has been urging the UK Government and, since devolution, the Scottish Government and Scottish Parliament, to put the charter into domestic legislation so that it enters into force. Scotland, Wales and England are the only countries in Europe, other than Hungary, that do not recognise the right to local self-government in their domestic legal frameworks. That is what incorporating the charter is all about.
It is a rare oddity that Scotland, with more than 600 years of uninterrupted local government history, has not yet held itself to the same standard as other countries in Europe. Furthermore, at time when the UK has left the European Union, passing the bill will ensure that Scotland keeps pace with the standards of the other European organisation, the Council of Europe, of which the UK was one of the founders.
Incorporating the charter would bring about a new level of partnership working on shared issues, with a positive impact on outcomes—as with legislation on equalities, with the law being a legal backstop for Governments. Next year, the Congress of Local and Regional Authorities of the Council of Europe, which is responsible for monitoring the application of the charter and at which Councillor Heather Brannan-McVey and Angela Constance MSP represent Scotland, will come to Scotland to examine the state of our local democracy. What better sign than to welcome the congress with the bill already on the statute book?
I will begin by asking the panel the same questions that I asked the first panel. To what extent and in what way does the bill support the process of further devolution to local government, and what legislative barriers remain? Councillor Evison, do you want to kick off on that?
Yes, thank you. The bill is about a really important culture change. It is about ensuring that the relationship between the Scottish Government and local government is on a firm partnership footing and empowering local government to have that role. At the moment, when the Scottish Government wants to introduce a new piece of legislation, an awful lot of thinking goes on before local government is consulted. In practice, the bill would mean that local government would be involved in decision making, with better outcomes and better results for the communities that we all serve.
This is an important stage in moving us on to the important next step of devolution—the next step of democracy in Scotland—which was first established with the Scottish Parliament. It is about making sure that our communities are more empowered to take part in decision making and that we take democracy right down to the lowest level in our communities and encourage people to feel empowered and get involved. By encouraging more participative democracy, which the bill would do, we would enhance work in our local communities and we would all get the better outcomes that we seek.
Andrew Fraser (Society of Local Authority Lawyers and Administrators)
There is a slight danger that we exaggerate what the bill would actually do. It is important to recognise that the charter came into effect in 1998. I understand that the Government has committed to comply with it, so in theory the duties in the bill should be being complied with already.
I agree with the submissions from Alison Evison and Alison Payne that this is very much about culture change and building on the new relationship. It feeds into the overall debate about the sort of country that we want Scotland to be: do we want it to be a rights-based society that takes its international obligations seriously and where all organisations work in partnership towards a common aim? That is unfinished business, and the bill is part of the starting point of building more consensus.
The corollary of that—in some ways, it is the opposite—is that, if Parliament does not support the bill, it will send out a bad message about the commitment to subsidiarity, the forthcoming review of local governance and the degree to which there is a commitment to depart from the command-and-control, centralising model. I suppose that being bedfellows with Hungary is not a good place to be, given that the charter will be subject to review next year.
The bill is a starting point. It is one of the important points of the journey down the road, and it is a good first win in the local governance review. Many of the issues that have been raised by the committee are wider issues about the local governance review. Those issues are extremely important, but I do not think that the charter will answer them at this stage.
Councillor Malcolm Bell (Shetland Islands Council)
Thank you, convener, for the opportunity to appear before the committee today.
I echo what the previous speakers have said. In itself, the bill will not be transformative, but it is a very important first step along the road and a change in the direction of travel that we have been on for decades now. That is not a party-political point in any sense.
My question is: why would we not adopt the bill? Scotland likes to think of itself as a very European nation, which is an aspiration that I agree with. However, in terms of its centralisation habits, Scotland is a very British nation. I think that the adoption of the bill would go a long way towards changing that perception.
Can I ask you to clarify that? Are you saying that the bill would go a long way towards changing the perception of Scotland as being a British nation, or the perception that we are a European nation?
No. I am saying that we like to think of ourselves as a European nation—rightly so; I agree with that aspiration. However, given the centralisation habits of Scotland as a nation—of taking things into the centre and being very top down—it acts in a very British way.
Thank you very much for that. I was looking for that clarification—that was all.
I have a question about where the bill could clear up some of the ambiguity in charter articles. Does Andrew Fraser want to come in on that?
Inevitably, the charter articles are set out in broad terms. The bill is about building the culture and ensuring that people have regard to the charter as a starting point.
A good example might be the charter obligation that relates to ring fencing, which is in article 9(7). It says:
“As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects.”
That is not a bar to ring fencing; it just means that the “as far as possible” test has to be addressed and considered. That is a good example. It is a bit like what happens with equalities: it asks for the charter to be considered before consultation. I hope that that helps.
Yes—that is fair. Does Councillor Evison want to come in?
I echo Andrew Fraser’s comments. It is about making sure that local government is consulted and that the interests of local government are considered. It is not about saying either that local government shall do this or that local government shall not do that; it is about consultation and thinking together. Local government delivers 61 per cent of the national performance framework, so you can see the importance of having that consultation, involvement and participation. The charter makes sure that we can have that discussion and that local government is considered before decisions are made—that is the important thing. It is about refocusing the relationship between central and local government for better outcomes for our communities. The bottom line is that we all serve the same communities.
That is definitely true.
According to Councillor Bell and Andrew Fraser, it appears that the purpose of the bill is really to send out the message that we have already been doing for a number of decades the stuff that we are being asked to do under the bill. Is that the case? Is the bill really just about sending out a message, or does it have real, practical application?
I do not think that I said, and I certainly did not mean to say, that we have been doing things right for decades; I may have worded it wrongly. Certainly, for decades the power and the influence of local government have been eroded and chipped away. As I said, that is not a party-political statement. It has happened under Governments of all hues in Edinburgh and Westminster. For example, over the past four or five decades, we have lost power over public health, water and sewerage and police and fire services, and education is now largely directed from Edinburgh. It looks as if we could well lose—[Inaudible.]
How would the bill bring any of those services back into local government control?
It would not do that in itself, but it would send out a signal that the Government takes its relationship with local government seriously, which we do not feel that it does at the moment. We feel undervalued, underfunded and very much under the authority of Holyrood, as opposed to being a partner.
Things started off well in 2007 when we had the concordat. We had a real feeling that we were entering a partnership, and for a number of years that worked well. That probably links back to what previous speakers have said about the council tax freeze, for example, which was readily accepted because at the time we had what felt like a real partnership. However, over the years, that feeling has eroded—and the Covid situation has accelerated that.
This discussion could go on, but I have run out of time. I hope that somebody else will pick up on some of those issues.11:30
I thank the witnesses for submitting written evidence in advance of our committee meeting.
A member of the previous panel suggested that the bill will reset the relationship between the Scottish Government and local government 20 years on from the establishment of the Parliament. What are the witnesses’ views on whether the bill will have a transformative effect on partnership working between the Scottish Government and local government? Is all the written evidence that makes that assumption correct? I ask Alison Evison to kick off first.
I think that the bill has the potential to be transformative, in the sense that it is the first step on a transformative journey. It makes it possible to rephrase the relationship between the Scottish Government and local government. It will give a sense of confidence that local government’s voice will be heard. That will encourage local democracy by encouraging people to come forward and participate in that democracy.
As a result of that, I think that we will see a more diverse range of people wanting to get involved in local government and to serve their communities. That will be of huge benefit for us as a system of government across the two spheres of government in Scotland. I think that the bill has huge potential to do something that is great and to be the first step on the journey.
To pick up on a point that has just been made, this is not about what the current Scottish Government might do or not do, or about what its wishes or aspirations might be. It is about enshrining something in law so that it is always there. It is not about particular policies that might come in. It is about making sure that the relationship is set up and is always there as something that we can hold on to; it is about making sure that we know that we can have those conversations and have that security and confidence. In that way, people will feel more empowered to get involved and we will have better outcomes for all our communities.
Councillor Bell, you think that we need that reset of relationships. Does the bill do that for us?
I agree very much with what Councillor Evison said and do not have much more to add. I do not think that, if you pass the bill, the world will change overnight. The bill will send a signal, and local government and national Government will have to work on the relationship. I think that the bill will benefit both parties and the communities that we serve.
What I really want to see is an improvement in the esteem of local government. At the last election in 2017, three out of seven seats in Shetland were effectively uncontested. That is the first time that that has happened, and it is a real concern. If that trend continues, we may struggle to fill seats, never mind have uncontested seats. There may be a lot of reasons for that, but I am sure that one reason is that people do not see the value of local government. I think the passing of the bill would send out a very clear signal that local government is valued as a partner in the overall governance of Scotland.
Andrew Fraser, people quite often ask what the point is, given that the Government sets the finance. Do you think that the bill will be a game changer?
Yes, I think that the bill will be transformative for a couple of reasons. As I have said, it will not impose new duties. However, I think that, in both the local government community and central Government, awareness of the charter duties is very poor. Once the bill comes through, awareness of the duties will mean that they will be treated seriously and will become a reality, which can only help.
Similarly, if the Parliament does not agree to pass the bill, there is a danger that will be equally transformative, as it will send out a message that there is a lack of commitment to the charter. If the charter is something that Governments should have been implementing anyway, it should be no big deal to implement the bill. As I say, it fits very well with the rights-based framework.
Alison Evison, are there changes that COSLA feels should be made to the bill to make it as effective as it needs to be? I refer to your thoughts about how it could be amended and about the wording in the charter. Are there any changes that you would like to make to the bill as introduced?
No. COSLA and local government are happy with the bill as it is. It is really important that we do not complicate matters. The charter was written and ratified three decades ago, and ratification was accepted at that point. It is important that we move on with this journey. The charter is there; let us enshrine it in our law, move forward with it and be able to look positively at local democracy across Scotland. The bill is fine as it is.
Good morning, everyone. South Lanarkshire Council refers to challenging historical decisions around local government funding. Might the bill be seen as an opportunity to challenge past Scottish Governments on decisions on council funding? That is probably one for Alison Evison first.
As someone on the previous panel said, the bill is about recalibrating the relationship between the Scottish Government and local government. It is about moving forward. We are looking at something ahead of us, not something behind us, and I think that that is the important point about the bill.
Things could have been challenged in the past, such as through judicial review and so on, but this is about being forward looking—it is about the future. The onus is on all of us to take responsibility for the relationship and to move forward together in partnership to do something that enhances the role of local government and, therefore, enhances our communities. We are not looking back; we are looking forward.
This is probably not the answer that you would expect from a local government lawyer, but I think that the chance of a successful court challenge is minimal. SOLAR said in its written submission that that is very much the “nuclear option” that nobody wants to take. The chances of success would be relatively poor as long as the Scottish Government could show that it had due regard to the principles in the charter in weighing up the options. Nobody wants to get to that place, so I think the amount of legal action would be minimal.
Thanks very much for that answer. I like Councillor Evison’s point that this is about moving forward.
The other thing that I want to ask about is what you see as being the role of the Scottish Parliament and the Local Government and Communities Committee. Would it be just to scrutinise five-yearly reports under section 3, or could it go further, as some submissions suggest? With the bill enacted, is there a possibility that the Local Government and Communities Committee would become less central in examining the role of local government in Scotland, with that role passing more to the courts?
No, not at all. The courts would have a minimal role. They would be there as an option, but it would be very much a nuclear option. It is an option that we have already, in any event, and it is used sometimes but very rarely. I do not see that changing. As I and previous witnesses have commented, this is very much about working in partnership for the benefit of our communities.
I agree entirely. The most that the courts would do in a particular case is probably provide a bit of clarity around the meaning of one of the charter obligations. I do not see them in any way usurping or taking away from the role of the committee or the working relationship between COSLA and the Government, which I think will improve.
If you are trying to get us to pass the bill, it is not a good selling point to suggest that we do away with the Local Government and Communities Committee.
What a time to come in.
A lot has been made of the relationship between central Government and local government. In local government, the issue probably goes further, to the relationship between officers and elected members and then to the relationship with community councils and communities. It has been mentioned that the bill will go some way towards improving those relationships, given the consultation aspect for policy and legislation. Could the panel explain a bit more about how that consultation will look in practice? We all want to be able to consult our constituents as much as we can, and we know that the Scottish Government has in place statutory consultation periods for its legislation. Alison Evison, how do you see that working with COSLA? Would COSLA take a lead on that, or would the consultation be with local authorities themselves—with elected members or with chief executives or officers? How do you see that working?
This is about the relationship between the Scottish Government and local government, for the most part. It is about establishing that relationship and supporting the engagement with parliamentary committees and the different bodies that we liaise and discuss matters with before policy is developed, to make it the most appropriate for our communities. That is what the charter is about. The other issues are additional to the charter and are not part of the bill at all. They are things that would happen in addition to that, and I do not think we need to get diverted by something that may be a side issue.
The really important thing is that, by enhancing the role of local government and by creating confidence in the importance of local government as the voice of communities the length and breadth of Scotland, we would be encouraging more people to come forward to stand and represent their local communities. We would have more of a voice from women, ethnic minorities, disabled people and those with other protected characteristics, because they would have the confidence to come forward in a participatory democracy locally to be that voice.
The charter is not about how we would consult at a local level; it is about the relationship between the Scottish Government and local government. It is about creating confidence in the role of local government, enhancing its role and showing the value and esteem in which local government is held. Doing that would encourage people to step up and be part of it. When we have those voices at the table in local government, we have a stronger democracy and we have on-going consultation happening without needing something to be set up by which to do it.
Putting a European charter into legislation is not going to encourage more women into local politics. Improving the terms and conditions, putting up the wages, having consideration for childcare and, as you say, improving the confidence of women to stand for elected positions will help women to stand for election. Maybe you can help me out here, because I do not see how we can get the message across that a European charter will encourage gender balance in local authorities.11:45
There are lots of reasons why people do not get involved in politics. The fact that one method of adjusting the balance does not cover everything does not mean we should not do it. The fact that one thing does not do everything does not mean we should not do anything. It is an important stage.
One reason why people do not get involved—as well as all the other reasons you have pointed out—is that they feel that their voice is not heard. They feel that they are not able to make a difference, that local government is not held in the esteem it should be held in and that decisions are being made somewhere else. As Andrew Fraser has said, the onus needs to be on asking why people do not come forward and what that shows about the esteem and voice of local government. By enshrining the charter in legislation, we are saying that local government does have a voice.
It is important to have consultation between local government and the Scottish Government. We acknowledge that and accept the journey that we are on, moving forward with democracy in Scotland, and this is part of that picture. Yes, it does not solve every problem—I would be the first to agree with that—but it does go some of the way, and we should take the steps that we can take. The bill is an easy way of showing the esteem in which local government is held.
I suppose that I am looking for the practical differences that it will make rather than just sending a signal that we hold local government in high esteem—which we should be doing already, as has been said before. It should not take a new piece of legislation to do that. Does either of our other witnesses have an opinion on that?
I very much agree with what Alison Evison said. Gail Ross is correct: we continually hear about the esteem in which local government is held at Holyrood. Unfortunately, in my experience that does not play out in the day to day. It does not feel that way. In comparison to other European local government models, our model does not feel local and it certainly does not feel like government. I think Andrew Fraser made the point about the signal that would be sent out if we did not adopt the charter. It would not fix all the issues that Gail Ross has raised—for example, around gender equality—but it would go some way.
We need to engender enthusiasm for local government. People need to see that, by standing for election, being elected and getting involved, they can make a real difference. As we move towards to elections in 18 months’ time, people say to me, “Give me a reason for standing,” but it is sometimes difficult, because, to be perfectly honest, I struggle to say what areas I have real influence over. The bill is a step along the way. It is about turning around decades of erosion of the influence and power that local government has.
Gail Ross makes an important point: ultimately, what difference will the bill make to overall community empowerment? That is a very serious issue for the local governance review, and the bill is just one of the tools in the box. It fits within the overall framework of subsidiarity whereby power should go down to the lowest level. Whether you think of government in spheres or tiers, local government is closer to the people and is better able to achieve outcomes that are targeted at individual communities. From that point of view, if you pass a bill that supports charter obligations that empower local government, that should, in turn, feed down to local government being able to support its communities and achieve solutions that are targeted at the needs of individual communities.
I agree totally that there is a much wider issue, which is very much tied up with the local governance review, about how we can get to the point where community organisations, communities, community planning partners, councils and the Scottish Government identify shared priorities and everyone works towards achieving them. That is a much wider issue, but I think that the bill helps with that.
The majority of this panel have been councillors, and I am a bit surprised to hear a councillor say that he could not explain to people why they should be councillors. I doubt that there is an ex-councillor on the committee who could not say what they managed to do as a councillor or how being a councillor was beneficial to their communities and themselves. I accept that there are issues and that local authorities might have issues with the Government, but I do not think that we should be painting the picture that everything is doom and gloom and that being a councillor is such a terrible job that we do not know why anybody would want to take it. That is the message that is coming across—certainly to me, anyway.
Keith Brown, follow that, please.
I agree with you, convener, but also with Councillor Bell, for various reasons.
I have two questions. One of the witnesses said that we do not want to be bedfellows with Hungary by not putting the charter into law. However, we are currently bedfellows with Wales and England. Councillor Evison mentioned that COSLA had also previously tried to convince the UK Government to put the charter into law and had not succeeded. I assume that that was in concert with the Local Government Association. Is she aware of the reasons that were given by England and Wales for not putting the charter into law as we are now being asked to do?
Those negotiations with the UK Government obviously took place in the days before the Scottish Parliament. The work with COSLA over the past decades has been done by the Scottish Parliament, because this is a law that we can enact in Scotland. That is where our focus is, and it is what we need to do.
Why has it not been enacted? I do not know. The onus is on the Government to say why it has not wanted to enact it, because it fits in with the human rights portfolio of work that the Scottish Government is currently doing. It is very much compatible with that work. It also fits in with our international obligations. We have ratified an international treaty, and enacting the law is the next stage. It is important to fulfil our international obligations if we want to have the place on the international stage that we feel we should have. Also, it is the right thing to do for democracy.
I live here, in a royal burgh. Royal burghs have been part of the system of local government in Scotland for centuries, and this is the next stage on a journey that has been going on for all that time. It is important that we seek that perspective and ask what we need to do now to move our democracy on, to take things forward to the next step, to empower our communities and to deliver as we wish to in a democratic country.
That was not my question. Obviously, there is a commonality between England, Wales and Scotland under UK law. If you cannot say why England and Wales would not do it, is there no co-ordination across the UK between COSLA and the Local Government Association on these issues?
We are working on the issue in Scotland. We are working with our partners in the Scottish Parliament and the Scottish Government to get the charter ratified in Scotland because this is where we can make a difference. It has not been on the agenda with the LGA—we have been talking with the LGA about other issues: Covid, Brexit and EU transition issues. Our current concern is in Scotland because this is where we can make a difference. This is where Andy Wightman has introduced the bill, and it is where we have a chance to put it on the statute book and make a difference.
We are taking the lead on this. I do not think that we want to go down the line that we should not do it because no one else in the UK has done it. It is important that we do what is right here. We have a bill in front of us, and we have a chance to enshrine the charter in law for all the right reasons—for local democracy and the journey that we are on in Scotland.
Can I try with Councillor Bell? His point was about centralisation over the decades. In my view, centralisation has tended to follow times of economic crisis. Prior to the 1980s, councils were running energy companies, airports and all sorts of things, but then we had the economic downturn of the 1980s. I remember, as a council leader in the early 2000s, trying to convince the then Scottish Government that the level of funding that was given to local authorities was an indicator of parity of esteem, and it was following the level of funding that was provided by the Scottish Executive to local authorities. You mentioned 2007. Of course, after that, we had 2008 and the crash. If it is the case—I think it is, but I am not putting words in your mouth—that centralisation tends to be a factor of Governments trying to respond to economic crises or pressures, how would the adoption of the charter help to provide a safeguard? The point has been made that, where the charter has already been adopted, Governments can use phrases like “within national economic policy” to not do certain things. How would the charter help when centralisation was being accelerated by economic crisis?
That is a really interesting point. Local government’s power has been eroded over a number of decades but there have been key stages, and I think that is probably a good point. We have seen it happen again with Covid. The difficulty is that we are not resetting once we come out of such crises. We should not be using the crises as an excuse to suck powers into the centre and keep them there.
If I may, I will touch on the points that the convener made. It is becoming more difficult for me, as a councillor, to explain to people in simple terms the differences we can make, because 60 per cent of our revenue budget goes on delivering national outcomes. In that sense, we are becoming very much like health boards.
In Scotland, in comparison with most of the other countries in Europe, we have a very weak system of local government. I believe that the bill would act as a check and as a reminder to ministers that local government is here, that it is important and that it is a key partner. We want to be a key partner. We want to work together to deliver excellent services for our communities and for people across Scotland.
I do not want to take any of Keith Brown’s time, so I will not respond to that.
With apologies to Andrew Fraser, that is enough for me, convener. I am happy to move on, given the time.
Okay. Thank you very much.
I have a question about the financial memorandum. How accurate are the projected costs of the bill?
That depends very much on the extent to which the principles of the charter are already embedded in the Scottish Government. In other words, is there a need for substantial training of Government officers and, if regard is not currently given to those principles, what is the likelihood of challenge?
A relatively modest sum has been suggested, which is not particularly unreasonable. There might be £100,000 per annum involved in training, certainly initially. Thereafter, once the principles were embedded and everyone knew what they were doing, the chance of challenge would be nil and the costs would be relatively modest. The benefits of better working relationships would far outweigh any costs, which I think are pretty modest in comparison with those for most bills.12:00
I agree with that entirely. I think that the costs will be modest, if there are any costs at all. On the need for training and guidance, we are talking about people who are already used to working in the world of the Scottish Government and local government, so I would be surprised if a great deal of training and awareness-raising was needed. I assume that the training costs would be negligible and I do not believe that those costs feature in the financial memorandum. That is important, because they are not necessary.
Andrew Fraser’s last point is crucial. What outcomes and benefits will we get from the bill? What are the benefits of being able to develop policies that are more appropriate from the beginning? In recent years, we have had experience of policies being developed without local government that are later seen not to work. We have had to revisit those and, as soon as local government has been involved, things have gone forward in partnership and have been highly successful.
For example, on the 1,140 hours of early learning and childcare, since local government was brought round the table, the system has worked and has brought huge benefits across Scotland. We need to look at the beneficial outcomes from enshrining the charter in law and ensuring better partnership working, so that we have better policy and therefore move on in a better way. The financial gains will far outweigh any costs that people might fear.
Councillor Bell, do you have any comments?
No, thank you. I agree entirely with my colleagues so, in the interests of brevity, I will not repeat what they said.
Mr Wightman, do you have any questions for the witnesses?
No. I just thank the witnesses—I have no questions.
In that case, that completes our evidence session. I thank the witnesses for attending and for their helpful contributions. Our next evidence session on the bill, which will be with the Scottish Government, is on 2 December. I thank our witnesses for identifying some key issues to follow up at that meeting.
18 November 2020
Second meeting transcript
Agenda item 2 is an evidence session on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. With us from the Scottish Government, I welcome Aileen Campbell, the Cabinet Secretary for Communities and Local Government; Emily Callaghan, who is a solicitor; Jessica McPherson from the local government policy team; and John St Clair, who is also a solicitor.
We have allocated just over an hour for the session and have a number of issues to discuss. Andy Wightman, the member in charge of the bill, is also a committee member. Under the Parliament’s standing orders, he will, in effect, take part in the evidence session as a non-member of the committee. That means that I will allow him to come in only at the end for questions to witnesses if the time allows.
There is some brief technical information before we start. There is a pre-arranged order for questions. I will call each member in turn, for up to nine minutes. Cabinet secretary, please state clearly that you are bringing in an official to answer a question when you do so. There may be a short amount of time at the end for supplementary questions. I remind everyone to give broadcasting staff time to operate the microphones.
The cabinet secretary will make a short opening statement.
The Cabinet Secretary for Communities and Local Government (Aileen Campbell)
I thank the committee for its work to date on the bill and I pay tribute to Andy Wightman for his work on bringing the proposal to this point.
I reaffirm the value that the Scottish Government attaches to the unique role of local government and the Government’s respect for that sphere. We are committed to local decision making, as is demonstrated by ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act (2018), which signalled a significant transfer of powers to communities across Scotland. The historic islands act introduces the additional powers request regulations, which enable relevant local authorities to request that responsibilities be transferred from the Scottish ministers to them.
The committee heard evidence from Councillor Alison Evison, the president of the Convention of Scottish Local Authorities. I agree wholeheartedly with her when she says that we can achieve more for our communities when we work well together. That is why developing and maintaining a close, constructive partnership between central Government and local government has always been a key priority for this Government.
To give a sense of that partnership approach and to illustrate the influential role that local government has, you need only look at some of the current areas of success and at the mechanisms in place for joint working. For example, COSLA is a co-signatory of the national performance framework that sets out our shared ambitions for a successful and inclusive Scotland.
We jointly launched the local governance review as part of our shared commitment to subsidiarity and local democracy. That creates an opportunity to promote the biggest shift of power since devolution. We will do that by ensuring that decisions are taken as closely as possible to those that they affect most, something that I know Councillor Evison is passionate about.
COSLA is a key stakeholder in our cabinet sub-committee discussions on public sector reform and I have regular bi-monthly meetings with the COSLA president, which provide a platform to discuss key issues of concern to local government.
Those are just some examples of how local government plays a significant and inclusive role in the current decision-making process and governance in Scotland across all portfolios, and all levels of Government, thereby ensuring that local government’s voice is heard and is firmly rooted in our policy development process. That relationship and partnership approach have also been critical in our response to Covid, as has our relationship with the Society of Local Authority Chief Executives and Senior Managers, given that we are all focused on doing what we can to support the communities that we serve. However, I recognise that there can be challenges, and there are times when we do not always agree. If there is ever any more that we can do to continue to strengthen the relationship, my ministerial colleagues and I are open to considering that.
That brings me on to the reason why we are all here today. I recognise that adopting the European Charter of Local Self-Government in domestic law might be one way of demonstrating our commitment to building a strong and lasting relationship with local government. I met Andy Wightman yesterday, and I appreciate the exchange that we had. As I explained in my memo, and to Mr Wightman yesterday, the Scottish Government took a neutral position to the bill to allow due diligence to be carried out, as I wanted to fully understand the bill’s implications and practical application. Given that it is a member’s bill, that is not an unusual position. I am pleased to advise the committee that officials have completed the analysis, and my cabinet colleagues and I are satisfied that the Government can express support for the bill. I know that Mr Wightman, COSLA and the many stakeholders who have an interest in the bill will be happy with that.
There are some issues around the drafting, which some technical amendments would help to improve, but none of them are substantial. The principles of the bill are ones that the Government supports, and we will engage with local government, and build on a strong platform of collaboration, to cement our strong partnership and improve the lives of the people of Scotland.
I look forward to answering any questions.
Thank you for stating the Government’s position. You highlighted that the bill’s requirement to report every five years on the steps that Scottish ministers have taken to safeguard and reinforce local self-government and increase the autonomy of local authorities was a potential challenge. Why does that requirement appear to be such a challenge, and will you be looking to deal with the matter through a technical amendment?
It poses a potential challenge. The request for a report every five years is reasonable; however, depending on when the report becomes due, it may be a challenge to properly show what the Government has been doing. It is not a significant issue, but it could be a challenge. On the whole, we believe that the provision strikes the right balance, but we want to flag up at this stage that there might be issues in achieving what the bill requires.
It is helpful to know that you do not see the requirement as being a stumbling block in any way.
The bill lends itself to financial independence. We recently heard from COSLA that local authorities’ influence and effective governance has slowly been eroded over many years, with 60 per cent of their funding being directed and monitored by the Scottish Government. Do you agree with that figure? How will your local governance review and national islands plan address the issue, and why do you feel that the bill will impact on the current plans?
As a Government, we have always sought to remove ring fencing. Since this Government came into post, we have tried to enable flexibility with local government finances. I know that that approach continues with Kate Forbes’s work, particularly around some of the flexibility that she has announced in direct response to Covid.
More generally, we believe that the local governance review and the national islands plan are complementary to the ends that are being sought by the bill, which mainly involve recognising and respecting the role of local government and local decision making. As I said in my opening remarks, the local governance review was jointly launched by the Government and COSLA, which demonstrated a united approach to seeking to rebalance power and the close consideration of where decisions are made.
I do not accept the claim that local authorities’ influence and effectiveness have been eroded—I would argue that quite the contrary is the case. As I said, we engage with local government across all portfolios. Moreover, as I said earlier, the national performance framework was jointly signed by the First Minister and the president of COSLA, which symbolised a joint and shared aspiration for and view of what type of country we want Scotland to be.
I also point to the fairly recent social renewal advisory board. COSLA and SOLACE are active participants in the social renewal work that we are taking forward, which ensures that local government is involved and active in shaping the recovery from Covid.
As the cabinet secretary with responsibility for local government, I regularly engage and meet with COSLA to maintain our relationship and work through the challenges that might arise. The foundations that we had in place have been underpinned by our level of engagement through our response to Covid and Brexit, and have enabled us to intensify our work together to ensure that we do all that we can to support our country’s resilience now and in the future. We engage deeply and meaningfully with local government on a number of fronts, because we respect the role that it has, and we can point to a number of examples of that.
I conceded in my opening remarks that there will be challenges from time to time, and points of differences, but I hope that the relationship that we have tried to create between ourselves and local government will enable us to navigate a path through some of those challenges. I also recognise the calls that have been made to support the bill.
I just want to put on the record that I was quoting COSLA when I talked about its influence being eroded.
My final question is around the costings of the bill. Your submission queried whether the costings for the bill were robust. Could you expand on that point? What do you think is missing from the financial memorandum that you would have liked to see there?
We had to take a bit of time to look through the practical application of the bill to ensure that we also undertook a financial consideration of it. One of the biggest risks that we identified was around the potential increase of legal challenges and the associated costs that such an increase would bring. That was one area around which we had a concern about the robustness of the bill’s costings. However, as we listened to the people who responded to the committee’s work, we heard that those legal costs are something that people want to avoid more generally.
The financial memorandum is broadly fine. Although we did have concerns around those potentially escalating legal costs, they are not something that anyone wants to see happen. I would not want to put words in Andy Wightman’s mouth, but I think that he also wants to avoid those costs.
Yes. That idea came across loud and clear from the witnesses we heard from.
Sarah Boyack (Lothian) (Lab)
It has been suggested that one of the main benefits of the bill will be that it delivers a parity between the Scottish Government and local government. The cabinet secretary has said that the Scottish Government will support the bill and I welcome that fact. Does she agree with that key idea of parity in the principle of the bill, which some of our witnesses said was long overdue?
The Government, as a matter of course, has always viewed local government as another sphere of governance, with democratically elected representatives who are there to serve the communities, just as we are. We have always valued and respected local government.
I have set out a number of ways in which we sought to ensure that that parity is there when we develop our approaches, take forward policies and engage in new activities such as the social renewal advisory board. We have always viewed local government as another sphere of governance that needed to also be involved, because some of things that we want to achieve involve practical delivery by local governance.
That involvement is in all of our interests—Councillor Evison would have conceded that point as well. It benefits us all if we work well together. We also heed the calls that others have made about formalising that relationship more and giving that parity a legislative underpinning. That is why we have arrived at this position. We want to ensure that we can use the bill as a platform to further improve the relationship that we have with local government and embed that improvement in legislation.
The acceptance of that principle is welcome.
In your opening remarks, you said that, although you were happy with the principles of the bill, you felt that drafting amendments would be required. Can you give us examples of the key areas in which you think that the bill needs to be redrafted before you would support it at stage 3?09:45
I had a discussion with Andy Wightman yesterday about some of the drafting. We have said that there are no substantial changes that we would be seeking to make; the changes are more about the technical drafting. It may be that that can be resolved. Our bill teams have undertaken to work together to talk through the interpretations and whether that can be resolved. For instance, in relation to section 3, which is on the duty to promote local self-government, we were looking for a bit of clarity on the timing, laying and publishing of reports in subsection (3), and on who is to assess and who is to be consulted. Those are the sort of things I am talking about.
I hope that that gives a sense that it is not about show-stoppers and our wanting to make substantial changes; we are talking about the technical drafting and clarity, and whether we can improve them. We flagged that up to Andy Wightman in our meeting yesterday, and our teams have undertaken to work together to try to work through some of that.
Is that okay? There was a rustle, and I was not sure if I heard something else.
No, that is fine. I just wanted to clarify whether there are any issues of principle, whether you could give us a steer on the areas in which you think that the drafting needs to be improved for clarity, and whether there is a political issue that means that you want a slightly different flavour in the bill.
No. As I said, the issues are more in the line of what I have outlined. There are points of clarity and drafting; there is nothing to change the purpose of the bill. There are some things that can be done through amendments and working together, or they can be resolved by ensuring that we have a crisp and clear understanding of the intention from Andy Wightman’s team.
Okay. Thank you.
Professor Chris Himsworth raised an issue. He suggested that it is not just the relationship between the Scottish Government and local government that needs to be given parity and that there is also an issue relating to Scottish Government bodies that are responsible to the Scottish Government. He thought that an amendment might be appropriate. Have you considered that, or would you consider it?
At this stage, I do not think that we would be looking to further expand that. I think that the scope and coverage of the bill are fine. That said, the bill will enable us to work with our partners to ensure that all our agencies and all public life are geared up to recognise the bill. I think that the scope and the terms of the bill are fine, and we do not feel that we need to extend them further. However, as other witnesses have said, the bill will change the culture. We need to ensure that we work across all our agencies to ensure that they are supported and geared up for the legislation.
That is very helpful. In our evidence session, Professor Chris Himsworth, Professor Richard Kerley and Reform Scotland all thought that that issue should be explored. It would be good to explore it when we hit stage 2 of the bill, if we agree to its general principles.
I think that you also had witnesses who did not say that and did not agree with that position. We can further work through that, and the committee will take a view and report on it.
That is why I wanted to test it with you, cabinet secretary. In one of our evidence sessions, the three people from whom we took evidence all thought that that was a good idea that should be further explored.
Alexander Stewart (Mid Scotland and Fife) (Con)
Good morning, cabinet secretary. In your preamble, you talked about encouraging and being supportive of local government as a key sector, and about the partnership working that is going on. I am very encouraged by that. To what extent can the Scottish Government prove that it has complied with the charter to date?
We already act in compliance with the charter, and I have set out a number of areas in which we are working jointly with COSLA and local government to make sure that their views, experience and role as a sphere of government are reflected in the policies that we progress.
I can point to a number of policy areas in which we work well with local authorities. I have already mentioned the local governance review, which we and COSLA jointly launched. Furthermore, the national performance framework is jointly signed by the First Minister and the president of COSLA. That in itself is symbolic of the direction that we collectively want our country take.
In my portfolio, we have worked well with COSLA on our policy on asylum seekers. We have also jointly published guidance on, for example, the no recourse to public funding condition. Therefore, on issues that are, to a degree, reserved, we are working together to pool our efforts to enhance the provision and support for people who are particularly vulnerable. Similar work has taken place around the Gypsy Traveller community and our homeless community. Again, Councillor Whitham and Kevin Stewart have been working together effectively to try to make sure that we can take the right actions on those issues.
The same applies to other portfolios. When I was the Minister for Public Health and Sport, we worked together with local government on the shared priorities for and the delivery of public health. That work continues.
I argue that, in a range of areas across a range of portfolios, we work well with local government. I also argue that, prior to its incorporation into domestic law, we have worked in compliance with the charter—and policy decisions are better for that.
I agree with that, cabinet secretary. You have talked about the further devolution that you want for local government. Has the fact that the charter is not currently enshrined in legislation led to any constraints?
No, I do not think so. The charter places an emphasis on consultation and agreement, and I think that we do that already. However, again, we are not blind to the evidence that the committee has had from our colleagues in local government who are seeking to formalise and underpin that with legislation.
On whether there have been any barriers or whether we have been constrained, I do not think so.
Some witnesses told us that the bill should be extended to cover other public bodies. Do you have any views on whether doing that would be beneficial?
No, not at this time. I understand from Sarah Boyack’s line of questioning that the committee is perhaps seeking to explore that issue further. I consider that the charter and the bill are primarily about the relationship between local government and central Government, and the bill places a duty on central Government to act compatibly with the charter. At this time, I consider that the scope of the bill is right. Again, it will be up to the committee to consider that—in light of Sarah Boyack’s similar question, it might want to explore the issue further. From our perspective, I think that the scope is fine.
This is all about strengthening outcomes and strengthening democracy. Will compliance with the charter strengthen outcomes in relation to the local governance review? Is that an objective for the legislation?
I think that the bill will complement the joint local governance review. We continue to work on the review, although it has been disrupted by Covid. That is an exciting opportunity to shift the balance of power.
This is a timely moment—a milestone; 20 years after devolution—to think about whether the current structure is the right one, whether decisions are made in the right places and what we should do to ensure that the structure reflects the needs of Scotland in the here and now.
With the Convention of Scottish Local Authorities, we are looking to work with our communities to consider what would give them a greater sense of empowerment and the ability to take more decisions themselves. The past nine months have shown what communities can do when they are given the tools, the support and the sense of agency that enable them to cope and to look after people during something as traumatic as a pandemic. Once the restrictions ease and we are a wee bit further through, in relation to the health measures that are in place, we will be able to embark on that work to further empower communities—that is a desire that we set out in our programme for government.
The bill will undoubtedly complement that work—that is a shorter way to answer to your question.
Keith Brown (Clackmannanshire and Dunblane) (SNP)
Cabinet secretary, the Scottish Government said in its submission:
“The UK ratified the Charter in 1998 and so the Scottish Government is bound to comply with it”—
these days, I suppose, the need to comply with international treaties has become a rather old-fashioned view.
The Government goes on to say that the bill
“places a duty on Scottish Ministers to act compatibly with the Charter Articles”.
Am I missing something? Is there a distinction between the Government’s being “bound to comply” with the charter and the bill trying to make it “act compatibly” with the charter, which is lost on me?
Are you asking whether we believe that this is required for us?
It says in the Scottish Government’s submission that the Scottish Government accepts that it is “bound to comply” with the charter, but it also says that the bill seeks to ensure that the Scottish ministers “act compatibly” with it. Is there a distinction between the two? Maybe there is not; I am just wondering why the bill would seek to achieve something that is already provided for.
We have always believed that, from the outset, we have acted compatibly and sought to comply with the charter and adhere to its principles, in all our approaches, policies and portfolios. I suppose that what is different is the call—from COSLA, others from whom you have taken evidence and Andy Wightman himself—to give the charter a formal statutory footing in domestic law. It probably is an unusual bit of legislation to incorporate, but on the whole we are comfortable with the principles that underlie it because we already comply with them. I suppose that the real difference is the formal footing and the legislative underpinning in domestic law.
As you said, we have heard a variety of views from people. What I have heard from people in local government veers from a view that the bill is pretty irrelevant to the issues that they face and would have no huge effect and make no real difference, to a view that the bill would be a charter for endless and expensive legal disputes between different tiers of government, which would come to a head before elections, when people would try to score points.
Given that local government and the Scottish Government are pretty hedged around by bodies that examine what they do, and given that they operate at one remove through arm’s-length external organisations and public sector bodies, for example, which view do you go along with? Is the bill likely to be pretty toothless in its effect or could it be detrimental to a proper working relationship between the two spheres of government? Do you have a view on that?10:00
Our view is that we act compatibly with the charter. I know that you have heard some views to the contrary in your evidence, but our relationship with local government is pretty good. Undoubtedly, from time to time, we have differences of opinion and we can hold different viewpoints but, on the whole, in my experience and across the Government, our engagement is positive. That fairly solid relationship has been essential during the course of the past nine months and has had to intensify because of the regularity of having to work together. How we have responded has meant that we have had to work very closely with local government, including with SOLACE.
We have always worked on the assumption that we were compliant with the charter and that our relationship with local government was good, but we cannot ignore that local government colleagues have said that they feel that the legislative underpinning and the legislative articulation of that respect of local government is important in order to give more focus to the relationship and the sense of parity between the two spheres of government.
We also take heart from the fact that nobody—regardless of whether they are in local government or national Government—is looking to make the relationship into one in which decisions are challenged routinely and where there are big barneys in the courts, legal wrangling or expensive cases. I do not think that that is what anyone wants from the bill; that is certainly not what I heard from Andy Wightman or your witnesses, and it is not something that we want. We simply wanted to flag up the risk of an escalation of the cost, and that had to be checked across the whole of Government.
My hope is that we use this moment to further strengthen our relationship with local government and demonstrate our commitment to it.
There is an element of risk—there are risks with anything like this. However, from how it has been framed by the folk who have given you evidence and the fact that we do not want it to end up being caught up in the courts, we can have a sense of reassurance that we are talking about a gentlemanly relationship between the two spheres of government, and our communities will benefit from that.
One of the comments that we heard from COSLA was that not doing what has been suggested would leave Scotland as an outlier along with Hungary, which is a pretty unfavourable comparison. However, if the bill becomes law, the rest of the UK will be the outlier, which COSLA did not seem concerned about. We also heard from Professor Chris Himsworth that not only should other public bodies be incorporated in this proposal, as has been mentioned by Alexander Stewart and Sarah Boyack, but the UK Government should be involved as well, which would genuinely make it about different spheres of government. I know that you cannot answer for the UK Government, but do you feel that it would be anomaly if we were to incorporate the charter and other parts of the UK did not?
If the bill progresses through the Parliament and we are the only UK nation that has it in place, that would mean that there is a different approach in Scotland than there is the rest of the UK. However, the bill is proposed in Scotland and the Scottish local authorities’ umbrella body, COSLA, is looking for the legislation. As the bill progresses, we can see whether the UK has any position on the matter.
I am focused on making sure that the relationship between the Scottish Government and local government is as good as it can be. It would be up to the UK Government to determine whether it feels that it always acts in compliance with the legislation in relation to its local authorities.
Despite some of the concerns that have been raised around the work and the relationship between local government and the Scottish Government, I feel reassured that we are in not a bad place, which has been demonstrated through the close contact that we have had to have over the past nine months in particular. My focus is on that relationship and, if that puts us at odds with the rest of the UK, that is simply a consequence of our taking different approaches. Getting to make our own decisions is a consequence of devolution.
I agree with what you said about the way that local government responded during the pandemic. It has done a fantastic job, working with the Scottish Government.
Gail Ross (Caithness, Sutherland and Ross) (SNP)
Good morning. We heard from Professor Kerley that some of the different views that were expressed in the earlier consultation may well resurface. A significant area that people could not agree on was whether the post of commissioner should be created. What is the Scottish Government’s view?
We feel that we agree with and are in the same place as the majority of the consultation responses, including—I believe—those from COSLA and Andy Wightman himself, although I would not seek to prejudge his views.
I do not believe that we feel that a commissioner is required.
Excuse me, but something has just cropped up on my screen that I will have to take down. I am sorry. There was a gremlin on my screen that I wanted to make sure to sort.
No watching movies when you are in front of the committee, cabinet secretary.
I did not mean that!
I am sorry for that interruption to my train of thought. As I was saying, we do not believe that there is a need for a commissioner.
I do not have much else to ask about. However, I will ask about the more general subject of encouraging more people from diverse backgrounds to stand for local government. That subject came up with Councillor Evison, who was of the opinion that the bill may help in some ways. Obviously, I would be delighted if it encouraged more diversity in elected membership in local government. Does the cabinet secretary see that happening, and how do we ensure that it does? In addition, how do we encourage more diversity in elected membership in local government more widely?
If I am honest, when I ask people about the barriers to their taking part in elected life, the answer has never been the fact that we have not incorporated the charter. The way that Gail Ross framed the question is therefore right, in that it is about how we the use the bill—if it progresses—as a chance to increase participation, which we all want to see.
Although it could be different for others, speaking anecdotally, the issue has never been raised with me as the thing that is putting people off. Nonetheless, if we choose to use it positively, it could help. However, it is more important that we encourage diversity through political parties doing what they can, and through mentoring and networking and so on, particularly for women. I know that Councillor Evison cares very strongly about those things and has done a lot of work on them at COSLA to try and encourage more people to stand for local government.
You and I are in a particular position: neither of us are seeking re-election next year, so we will have views about what other things need to change in political discourse and debate, such as how we respond to the challenges of family life. A host of other things need to change, not just in local government, but across all our elected arenas, in order to encourage a more diverse range of people to enter politics. If we achieve that, it will be better for our communities and constituents and for the country more generally, because every scale of Government will be more reflective of what our communities and society are like. It will take more than the bill to improve diversity but, if we choose to use it wisely, it gives us another way to encourage more diversity in local government; we will also need to work on diversity in the national Parliament.
Annie Wells (Glasgow) (Con)
Good morning, cabinet secretary. I have a couple of questions. If there are to be any sanctions beyond a declaration of incompatibility, what does the Scottish Government see potential sanctions for non-compliance being?
I do not believe that there is a need for sanctions. If a declaration of incompatibility is made, it would be necessary to deal with that.
Perfect. Most of my points have been covered already, but I have a final question. Does the Scottish Government have concerns around cost implications, particularly if the principles of the charter are already being adhered to?
We have talked today about the concerns that we raised. We are reassured by some of what has been said in previous evidence sessions around the potential legal costs, but we still need to be mindful of them. However, if the legislation goes through Parliament and is adopted, we also need to make sure that we provide material support, such as training, to make sure that folk are geared up for it. That would involve a cost, but the biggie would be the potential costs and risk around the legal challenge. As I said in a previous answer, we are broadly content with the financial memorandum, but we wanted to flag up that issue around legal costs.
Thank you, cabinet secretary.
Andy Wightman, do you have any comments or questions for the cabinet secretary?
I do not have any questions but I welcome the Government’s support for the bill.
Thank you. That completes our questions and concludes this evidence session. I thank the cabinet secretary and her officials for taking part. The committee will take closing evidence from the member in charge of the bill on 9 December and report to Parliament early in 2021.10:13 Meeting suspended.
10:16 On resuming—
2 December 2020
Third meeting transcript
At agenda item 3, the committee will take evidence on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. This is our concluding evidence session on the bill at stage 1. I welcome Andy Wightman, the member in charge of the bill; Neil Ross, solicitor at the office of the solicitor for the Scottish Parliament; Andrew Mylne, head of the non-Government bills unit; and Vanda Knowles, senior assistant clerk with the Scottish Parliamentary Corporate Body. I thank you all for being here.
We have allocated about an hour for the session, in which we have a number of issues to discuss with you. A pre-arranged questioning order is in place and I will call each member in turn to ask their questions for up to nine minutes. Andy Wightman will need to please state clearly if he wants to bring in an official to answer any questions. We might have a short amount of time for supplementary questions at the end. Everyone will need to give broadcasting staff a second to operate their microphones before they speak.
I thank the committee for its work in scrutinising the bill. I will briefly set out why I introduced it and what it seeks to achieve. As the committee is aware, the European Charter of Local Self-Government is an international treaty whose substantive articles are set out in the schedule to the bill and which guarantees a set of basic freedoms and protections for local government across the 47 member states of the Council of Europe.
As things stand, the treaty does not have the force of law in Scotland unless and until it is incorporated into Scots law. Article 2 of the treaty states:
“The principle of local self-government shall be recognised in domestic legislation, and where practicable in the constitution.”
The Council of Europe has noted that such recognition does not exist in Scotland. Thus, arguably, we are already in violation of the charter by not giving it the full force of law. As things stand, we are bound to comply with the charter as an international legal instrument, but there is no means to ensure compliance, because it is not part of domestic law and is thus not justiciable.
It is important to stress, as other witnesses have done, that the bill is not sanctions driven. It is designed to change the culture of compliance, principally through sections 3 and 8, which mandate continuous reflection on the extent of compliance by Scottish ministers, with any MSP introducing a public bill required under section 8 to consider the extent to which that bill complies with the charter.
Incorporation of the treaty has long been argued for by COSLA, which was involved in drafting the charter back in the 1980s and whose 2014 commission on strengthening local democracy recommended incorporation. The consultative steering group on the Scottish Parliament argued for incorporation in 1999 and lamented the fact that it had not happened in its 20th anniversary report in 2019.
The United Kingdom is at the bottom of the league table of European countries in having done nothing to give legal effect to the charter, and the bill remedies that.
I welcome questions from committee members.
To what extent, and how, does the bill support the process of further devolution of local government?
“further devolution of local government”,
do you mean the devolution of further powers?
Yes—of further powers to local government.
In and of itself, the charter does not require that. It sets out a set of basic freedoms and principles that should govern local government. It incorporates that into law, and any violation of it is thus challengeable. However, the extent to which local government has certain powers is up to the national legislature. That is the case throughout Council of Europe member states. The charter does not set any duties or expectations regarding any specific functions that should be devolved to local government.
One could argue that, in improving the culture of compliance, the bill is designed to strengthen local government and, to that extent, it would add weight to arguments from those—including me—who believe that local government should have more powers. In and of itself, however, the charter does not do that.
Would you say that the bill sends out a message more than giving further powers—further devolution of powers—to local government? In their submissions, many witnesses have suggested that the main benefit would be to send out a message of parity between the Scottish Government and local government. Is it about sending a message, or would there be more practical or tangible outcomes from the bill?
I have heard witnesses say that it sends a message. I have also heard the Scottish Government say that it would mark a significant constitutional change. I argue that it is somewhere in the middle. It is not a bill that merely sends a message. It sends a message—a very important political message—and it incorporates an important principle, but it also has substantive legal effect.
At the moment, if any local authority or citizen believes that the charter is not being complied with in any way, they can reference that in any court proceedings, but the court cannot rule on that question, because the charter is not part of Scots law. The court might say, “That is all very interesting, but there is nothing we can do about it.” Giving legal teeth to the charter is the main means by which the bill seeks to strengthen local government. In doing so, it sends a very strong signal.
I agree with the convener on the parity of esteem that should exist between different spheres of elected representation—as one witness stressed to the committee the other week, that is very important. Just as the Scottish Parliament has a founding statute in the form of the Scotland Act 1998, and various protocols in place to ensure that its powers are not undermined—although there is political dispute about that now and again—so the bill seeks to extend the same principle to local government, which is that its basic freedoms and powers should be protected in law.
Would the bill expand in any way the work that already goes on between the Scottish Government and local government, or would it simply give local government the confidence that it is supported by law?
The bill would go some way towards creating that parity, in the sense that, in any discussions that take place between local government and central Government—those discussions go on all the time, week in, week out—it would strengthen the hand of local government to know that it had the legal force of a charter sitting behind it. In other words, it would set boundaries on the extent to which Government could seek to interfere, intervene with, remove or modify the powers and duties of local government. The knowledge of where those boundaries lie should assist in those discussions.
At present, those boundaries do not exist, and those discussions and their outcomes are very much dependent on a political process. Where a Government might feel hostile to local government, it is quite free, through Parliament, to enact legislation that would harm local government, and the charter would prevent that. The bill would strengthen that dialogue, give local government more confidence and ensure that Government could not overreach.
I have one final question. Do you think that the Scottish Government’s actions on further local devolution have been constrained by the fact that the charter is not currently enshrined in legislation?
No, they have not been constrained—if anything, they have been liberated. Without the backstop and legal protection of the charter, and without those fundamental rights being enshrined in law, Government and Parliament are free to do almost anything that they like, so the effect has been the opposite. Incorporating the charter will, in fact, constrain the executive and Parliament in modest but important ways.
I have a couple of questions about the potential difference that the bill could make. How would your bill change the relationship between the Scottish Government and local government on funding, for example? What new powers would it give local government in respect of the ability to have new income streams?
How would it impact on that relationship? Where the Scottish Government has policies and pays for funding for local government to implement them, and local government says, “We’ll do that, but it’s not enough money,” and regarding the general funding that the Scottish Government passes on to let local government do its work in delivering services, how would the balance of power change? What are the practical implications for financial issues?
That raises an important question. The financial provisions in article 9 of the charter are those that Council of Europe monitoring missions have found or observed are not being complied with. Professor Himsworth referred to the fact that compliance with article 9(3) is perhaps “precarious”.
The charter does not influence the relationship between central Government and local authorities directly. Obviously, on finances, that relationship, as with the relationship between the UK Parliament and UK Government and the Scottish Government, will continue. At article 9, the charter sets out a series of principles and rules that would, if the bill is enacted, become law. That would constrain the freedom of central Government to do as it wishes and impose on local government against the latter’s wishes or interests. I cannot comment on the likelihood of those being invoked, as that would be for local authorities to look at in future.11:15
Those principles are framed in fairly broad terms. For example, article 9(1) of the charter says:
“Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.”
It would be up to a court to determine what that means. Article 9(3), which Professor Himsworth referenced, says:
“Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.”
The extent to which they have that power is arguable.
Those are important provisions in the charter that I think will change the dynamic of future discussions about finance. They would probably rule out some of the more adventurous approaches that the Government has taken, such as putting a penny or two on the council tax and hypothecating that for spending on attainment in schools. That is not the Scottish Government’s tax; it is local government’s tax. Those kinds of initiatives have not been taken very often, but they will probably slowly die away. Article 9 provides a framework within which the financial negotiations would take place. At the moment, they take place with no real framework; there is just custom and practice and a set of expectations.
That is helpful, because it is one of the things that colleagues in local government are strong on. They want the capacity to share resources, but they also want the capacity to have agency over the decisions that they might make with regard to additional financial income.
Can you give us examples of situations where the bill, if enacted, could be used to challenge Scottish Government action or inaction in relation to local government? Do you have practical issues that it would be useful for us to consider when looking at your bill?
I do not want to speculate, because the bill, at heart, is about making the charter justiciable, making it part of Scots law and therefore making compliance with it—by Scottish ministers and others—a matter of obligation in law. There are articles in the charter that require consultation on boundary changes, for example. That is already provided for in statute, so that will make very little—
I missed a word; you said something about changes.
There is provision in the charter that local communities shall be consulted on boundary changes of areas and wards. As I understand it, that is already done, so the charter will not make much difference in that regard.
However, it would be a fairly egregious breach of article 9(3) if, for example, the Government were to decide that the council tax rate should be set by Parliament, because non-domestic rates are already set by Parliament. The practical impact is that, if the Scottish Government or Parliament overstepped the mark or clearly overreached, that would be stopped and prevented. The culture would ensure that that would not happen in the first place. Those are some practical implications.
In a sense, one could answer your question properly only by, in 10 or 20 years, looking back and asking those who were part of negotiations between local government and central Government whether the culture changed and whether they felt constrained or emboldened—depending on the side of the negotiating table they were sitting on—by the incorporation of the charter 10 or 20 years previously.
So, in effect, you see incorporation of the charter as resetting the dial in the relationship between central and local Government. Some witnesses have been concerned that they do not want to see us looking back over previous and historical decisions, but your emphasis is that, from where we are now, incorporation resets the relationship. Is that right?
That is a fair characterisation of part of my motive for doing that, as I reflected in my opening remarks. When the consultative steering group sat in 1998 and 1999 and set out the basic architecture of the Scottish Parliament, the charter had just been ratified by the UK Labour Government in 1997 and 1998, so the group had an unquestionable expectation that the Parliament would incorporate the charter but, 20 years later, it was disappointed.
Obviously, over those 20 years, changes have taken place in local government. We have had the introduction of multimember wards, which are good; councillors are now paid; and there have been a number of other initiatives that have strengthened and improved the relationship. However, that fundamental framework has not been put in place, and that is disappointing.
In that context, I would say that, yes, incorporating the charter will reset the relationship and provide an opportunity to strengthen local democracy, which is why COSLA’s commission on strengthening local democracy was clear that the charter should be incorporated.
During the evidence sessions, we have had some discussion about the role of an overseeing commissioner. Do you think that such a post should develop? We have had some evidence from people who are not in favour of having an overseeing commissioner, because they suspect that direct legal action would be more appropriate. What do you think?
I have noted that that issue has come up; in fact, it came up in the consultation that I did on the draft proposal in 2018. When consultees were asked whether they would prefer compliance with the charter to be policed, as it were, by means of a commissioner or by means of a direct route to the court, 58 per cent said that they would prefer a commissioner and 42 per cent said that they would prefer the court route.
I rejected that view for a number of reasons. One was that of expense. I am not sure that we want more commissioners—we already have quite a few. More fundamentally, because the bill would make the charter part of Scots law, it is not really for commissioners—individuals who are appointed by the Queen, on recommendation of Parliament—to rule on whether the action of ministers or any statutory provisions of devolved legislation are compliant with the charter and thus lawful. That is the routine day-to-day work of the courts. Therefore, to the extent that any questions that arise in relation to compliance will be questions about whether something is compliant with the law, they should, naturally, go straight into the judicial system, because that is its job.
The other reason why I rejected the commissioner route was that it could encourage more complaints. It would be an easier route, presumably, and people could write in making all sorts of perhaps frivolous complaints. That would be against the spirit of the charter. The bill is not meant to create a means of complaining about or punishing local government—that is not the spirit of the charter. Rather, it is designed to change the culture. As a backstop, obviously, the charter is justiciable, and there can be challenges in the courts, but no one would do that lightly.
I maintain that the commissioner route is not the route to go down, and I would not support any amendments in that regard.
If the bill becomes an act, what role or relationship to it, if any, do you see for the Local Government and Communities Committee?
That question involves speculation about what a future committee might want to do. If I were a member of this committee in five or 10 years’ time, I would probably ask COSLA and local authorities when they appeared before us on any specific issue—or perhaps an annual basis—to reflect on the changes that incorporation has made. I would simply seek their views on the question. Of course, section 3 of the bill also makes provision for the Scottish ministers to report on the steps that they are taking to promote local self-government. I imagine that the committee would take an interest in that report.
The committee, as a committee of Parliament, would continue its scrutiny role, but that role would be enhanced by the fact that we would be living in a different era, in which the basic powers and freedoms of local government are no longer set merely by legislation that the Parliament passes but are set within this framework. I anticipate that the committee would be interested in questions about what discussions have been taking place between local government and the Scottish Government about compliance with the charter, where the points of tension have been, what practices have changed and so on.
My final question is about the cost implications. Has any further work been done on understanding the cost implications of the bill?
We set out the cost implications in quite extensive detail in the financial memorandum. That was a point that the Scottish Government raised in its evidence. Rather cheekily, I took the opportunity to point out that, in the financial memorandum for its United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill—which does a similar thing to my bill, in that it incorporates an international treaty—the equivalent potential costs are discussed in one paragraph, whereas the financial memorandum for my bill discusses its financial implications in 20 paragraphs.
I think that the financial memorandum is robust. The bill does not impose or directly bring about any direct costs on any party. The main costs that might be incurred would be any costs involved in local authorities, COSLA and the Scottish Government familiarising themselves with the charter. However, they should already be familiar with it. You heard the cabinet secretary say that she considers that the Scottish Government is already compliant with it, so I presume that there is a process within Government that is already monitoring compliance, and COSLA was involved in drafting the thing, so it is very familiar with it. Therefore, I do not think that those costs will be significant.
The significant costs would arise from any litigation that might be initiated by any party. Of course, that is the case with a lot of legislation that the Parliament passes. When we make new laws, we have to accept that those laws could be subject to litigation.
The question of how many cases might arise is a matter of speculation and judgment. We take the view that the number is likely to be minimal. As I have said, it is not a sanctions-driven bill; it is designed to encourage a culture of compliance, but with a backstop. I think that there are 200 or so judicial review cases every year, most of which are on things such as immigration—-there are modest numbers that relate to the prison service, and a dozen or so relate to planning. I would not rule out the possibility of judicial reviews but, of course, the decision about whether to get involved in litigation is a judgment that must be taken by the relevant parties, most likely local authorities themselves, and no local authority would lightly petition for judicial review. It is an expensive process, and it would only really happen at the end of a long process in which people had attempted to resolve any differences.
In short, the financial memorandum is robust and the committee need have no concerns about the cost implications of the bill.
Mr Wightman, you have mentioned that the bill is intended to do more than send a message, because it has substantive legal effect, and you have said that it could lead to court proceedings, although you do not envisage that many will take place. What do you see the potential sanctions for non-compliance being, if there are to be any beyond a declaration of incompatibility?
The bill seeks to make the charter law. Therefore, if the Scottish ministers act incompatibly with the charter, they are acting unlawfully. Any allegations that ministers are acting unlawfully or beyond their powers can be judicially reviewed. That is what judicial review is there for: essentially, it is to review the decisions of decision makers.
The sanctions are the standard sanctions that are available in judicial reviews—reductions, quashing, declarators and so on, all of which exist at the moment. The only one that the bill introduces is the declaration of incompatibility. Again, that is not a new sanction either, because the drafting is taken from the Human Rights Act 1998. Ultimately, the courts have the power only to say that something is unlawful. They would have the power to quash secondary legislation, where the parent act did not permit that but, other than that, they would not have the power to strike down any legislation; that is something that would be beyond the powers of the Parliament to give the courts. However, the impact of a declaration of incompatibility should be fairly powerful. If the courts were to rule that ministers had acted unlawfully, that would be a fairly damning judgment, and there would be political consequences. Even if the Government decided not to do anything, I am sure that the Parliament would put pressure on it to do something.
That is part of the culture of compliance and the bill not being a sanctions-driven bill. We have not sought to include any new sanctions or punishments, partly because we cannot, due to the limits of the Parliament’s devolved competence. The available sanctions are the standard sanctions that are available under judicial review.11:30
The Law Society of Scotland’s written evidence mentioned the potential need to extend the commencement period beyond six months. What is your view on that?
I do not agree that more than six months would be needed. I indicated in response to a question from Sarah Boyack that the Scottish ministers, the Scottish Government and local authorities are already familiar with the charter. There is not much to it—it is just a couple of pages long—and there is not a great deal to become familiar with.
Commencement dates matter, because a bill cannot become law the day after royal assent if things need to be done. In this case, one practical thing needs to be done. Under section 8, members are required to
“make a statement about the extent to which”
a bill that is introduced to Parliament
“is compatible with the Charter”.
Subsection (2) says:
“The Parliament must publish any statement”.
The Parliament needs to take time to consider how it will do that in practical terms. For example, will that be incorporated into the standing orders?
We took the view that six months is enough time for the Parliament to consider the only substantive practical thing that the bill requires. If the bill goes through the parliamentary process and gets royal assent in March or April, it would be enacted in September or October. That is a perfectly reasonable timeframe.
The committee has taken a wealth of evidence from a range of organisations. Having heard some of that evidence and read the Official Reports, are you considering lodging any amendments at stage 2?
Obviously, as the member in charge of the bill, I am in listening mode during stage 1. The Law Society of Scotland and the Delegated Powers and Law Reform Committee have made a recommendation on section 8 and remedial action, which I am paying attention to. I am interested in the committee’s views on that, if it has any.
As the committee has heard, the cabinet secretary has said to me that she is interested in having discussions on sections 3, 4 and 8. At last week’s Local Government and Communities Committee meeting, she said, if I heard her correctly, that the policy areas are not substantive, that she is looking for some clarity on my intentions, and that there might be some minor technical drafting amendments. We will have those discussions next week. The Scottish Government is seeking some clarity and the Delegated Powers and Law Reform Committee and the Law Society of Scotland have drawn my attention to potential amendments to section 6. Other than in those two broad areas, I do not have any amendments in mind just now. However, I am waiting to hear what the committee has to say.
Andy Wightman mentioned at the start of the session that the matter has been going on for a long time. I remember proposing incorporation at COSLA 20-plus years ago and supporting it at council. Andy said that the UK has done nothing on it, and that the bill will remedy that. However, as a matter of fact, that is wrong, is it not? The UK is not proposing to do anything—this is about Scotland, or am I getting that wrong?
I am sorry for any misunderstanding. What I am saying is that the UK has done nothing to incorporate the charter. If the Scottish Parliament decides to do that, part of the UK will remedy that.
In effect, as I think you mentioned, the bill would make something justiciable that is currently not justiciable. That is its main purpose and point. The evidence that we have taken on it veers between, on one hand, people saying that it is a dead duck because nothing would happen to anybody—we have had warm assurances to that effect—and, on the other, people saying that it would result in legal action. Some people fear that incorporation would just lead to a series of legal measures being taken by councils, maybe of different political persuasions from the Scottish Government of the day, and that that would basically pour public funds down the throats of lawyers. Which of those responses is closer to the mark? Would the bill have no effect or a lot of effect, in terms of legal action being taken against the Scottish Government?
I think that I heard all of the question, although I had a bit of a struggle because of the audio quality.
I do not accept either of those characterisations. As I think I said earlier, I do not accept that the bill is a dead duck or that it would just send a political message, but neither do I think that it would lead to extensive litigation. I do not accept either of those perspectives. It will not surprise the committee to learn that I see the bill lying somewhere in the middle.
I know that a number of committee members have been councillors in the past. If they have had any involvement with their councils petitioning for judicial review, they will know that it is not a process that is undertaken lightly, and that the council has to agree to do that in its corporate name. No political group—a Conservative group, a Labour group or whatever—may petition for judicial review in the council’s name without the council authorising it. Long before one got to that stage, one would inquire as to whether there were other routes through which to seek to remedy an issue. That would lead to political dialogue with Scottish ministers and, perhaps, the Scottish Parliament.
Even if a council were to get to the prospect of petitioning for judicial review, extensive advice would come from senior council officials on the merits of that, the prospects of success and the associated costs. There are duties on councillors when it comes to taking legal action, and the council then has to seek the permission of the courts. It is not a process to be entered into lightly, or one that it is easy for a particular group that feels aggrieved to undertake. It has to be done in the name of the council, and councils do not do it very often.
I therefore do not believe that there is any basis for suggesting that a lot of litigation would be likely, or that there would be what I could characterise as politically motivated or frivolous litigation. I just do not believe that that would happen.
Given that the bill would be so unlikely to result in much in the way of action, is not it the case that many people in local government would prefer instead to prioritise things such as full-time wages for councillors or things to do with the powers of local government, rather than something that would be likely to have little direct effect?
Obviously, councils can take forward any ambitions that they have in relation to having more powers or whatever, and bills can be introduced for Parliament to consider.
The important thing to observe is that the fact that, in my view, there is unlikely to be extensive litigation—the bill is certainly not designed to encourage that—does not mean that it would not have significant effect. I do not want to stretch the parallel between the bill and the Human Rights Act 1998, but the fact that there is not a lot of litigation under that act does not mean that it is not important that we have incorporated human rights. The act creates a culture of compliance because people know that it is there as a backstop.
In the context of the bill, decision makers would know that litigation was possible as a backstop, which would change the culture and their approach to issues that they look at week in and week out. The fact that not a lot of litigation would be in prospect or contemplated would not mean that, on a week-to-week basis, the charter was not having a significant impact, in the same way that—as I said, I do not want to stretch the comparison—the Human Rights Act has fundamentally changed, for example, how the police operate. There is now a completely different culture of policing because of the Human Rights Act; the absence of actions against the police under human rights legislation does not mean that it has not had a powerful impact.
I have a short final question. You mentioned the possibility of further amendments. To what extent can the committee be assured that, if we support the bill at this stage, it will not go off in a dramatically different direction through amendments?
I suppose that the committee could never be assured of that. Every member of the Scottish Parliament is entitled to lodge amendments at stage 2. I have indicated that I am not contemplating lodging amendments other than in the three areas that have been drawn to my attention by the Scottish ministers, to address the issue with section 6 that has been drawn to my attention by the DPLR Committee and the Law Society of Scotland, and to address any minor technical issues that might arise.
I cannot give any guarantee that the bill could not go off at all sorts of tangents, but I remind the committee that, at stage 2, the convener has the power to accept amendments or not, and amendments have to be within scope. I reassure the committee that, as far as Parliament’s standing orders are concerned, bills generally cannot go off at a tangent at stage 2. I have had no indication that anyone is contemplating any substantive changes to the bill.
I have a reasonably quick question. We have heard concerns about the litigation that might arise if the bill were passed. Will you give a brief overview of what the impact has been in other European states that have incorporated such legislation? Has there been a cultural shift or a resetting of the relationship, or has it led to lots of court decisions and challenges?
You want a brief answer to such a question? I have not done an extensive comparative analysis or study of the impact of the charter across Council of Europe member states. Professor Chris Himsworth, who gave evidence to the committee, has written a book about that, which members could read.
The Council of Europe has established monitoring missions to visit member states regularly. There have been two to the UK; there should be another next year. Findings from those missions have been incorporated into analyses of the extent of compliance across member states. In other countries, there has been litigation in which the charter has been invoked, but I do not know of any particularly high-profile cases.
It is difficult to assess any change in culture, because most Council of Europe member states have a legal system that is described as monist—in other words, international law automatically becomes part of domestic law; there is no requirement for legislation to incorporate it. We have a dualist system, which is relatively rare among Council of Europe member states. That means that we actively have to incorporate international law.
Countries with monist systems usually have constitutions. Basic freedoms and limitations on the extent to which federal or national Government or Parliament can interfere with the powers of local government are generally set out in the constitution, and are fairly long standing—by which I mean that they have existed for decades or, in some cases, centuries. France is an excellent example; there has been little change in French local government since the French revolution.
The impact of the charter on culture has been minuscule in many European countries, because the culture—in relation to the clear separation of powers, knowing where the boundaries are and the extent to which there can be interference—has been in place for a long time. You can see that by reading any random article of the French or German constitutions.
Comparisons can be made with countries such as Ireland and those in the rest of the UK, because they are most similar to Scotland, in the sense that the UK does not have a written constitution—although Ireland does, obviously. Therefore, the impact of incorporation, in relation to a culture change, might be more significant in Scotland than it has been in most member states.
The only exception that I will make to that is the culture shift that has taken place in eastern European states following the fall of the Soviet Union. The culture that those countries inherited had a particular character. The Council of Europe has been doing quite a lot of work to strengthen local democracy in emerging democracies, and the charter has had a significant role in that.
That is really helpful.
That was a short response to your question. [Laughter.] Thank you, Andy.
That completes our questions and concludes the evidence session. I thank Andy Wightman and his team for taking part in the meeting. The committee will report to Parliament on the bill early in 2021.11:45 Meeting continued in private until 12:53.
9 December 2020
18 November 2020
2 December 2020
9 December 2020
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate on the Bill transcript
The Deputy Presiding Officer (Christine Grahame)
The next item of business is a debate on motion S5M-23963, in the name of Andy Wightman, on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill at stage 1. I ask those members who wish to speak to type R in the chat function.14:50
Andy Wightman (Lothian) (Ind)
I am delighted to open this stage 1 debate on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. I thank all those who contributed to the bill’s development, including those who responded to the call for views on the draft proposal and those who gave evidence as part of the stage 1 scrutiny. I also thank the Local Government and Communities Committee for its diligent work and support.
I owe particular thanks to the Convention of Scottish Local Authorities for its support. Scotland’s councils have been calling for incorporation of the charter for a very long time. I thank the Cabinet Secretary for Communities and Local Government for her constructive engagement and support for the bill. Finally, and most of all, I thank the Parliament’s non-Government bills unit for its hard work and support, and I am very grateful to Christine O’Neill QC for drafting a bill that has withstood quite intense legal scrutiny.
The purpose of the bill is to strengthen the standing of local government in Scotland as part of Scotland’s democratic architecture. In my opinion, that is a vital endeavour. Since 1975, when Scotland abolished genuine local government with the scrapping of town councils, local authorities’ standing and powers have slowly but steadily weakened. In a paper that was published in 2013, COSLA wrote:
“Local democracy is weak compared to Europe. Scotland is one of the most centralised countries in Europe. It is no coincidence that our European neighbours are often more successful at improving outcomes, and have much greater turn out at elections. We cannot hope to emulate the success of these countries without acknowledging that they have more local councils, local elected councillors represent fewer people, and that these councils and their services are constitutionally protected and their funding secured by law, even with regard to national policy making. We should seek the same benefit, and the same independence that local government has in most western democracies.”
The means by which the bill strengthens local government is incorporation of the European Charter of Local Self-Government into Scots law. The charter is an international treaty of the Council of Europe that was opened for signature in 1985. Its substantive articles, which are set out in the schedule to the bill, guarantee a set of basic freedoms and protections for local government across the 47 member states of the Council of Europe.
The treaty was signed by the United Kingdom in June 1997, by the newly elected Labour Government, and it came into force on 1 August 1998. However, the charter can have no legal force in domestic law until it is incorporated into domestic law. At its heart, the bill achieves that incorporation in section 2, by placing a legal duty on the Scottish ministers to act compatibly with the charter as reproduced in the schedule.
If the bill is enacted, the charter articles will become law and it will be possible for them to be relied on in the Scottish courts and for legal remedies to be sought for any alleged violation of them. For example, the bill allows a declaration of incompatibility to be made or secondary legislation to be struck down when the section 2 duty has been breached. However, I emphasise that the bill is not designed to encourage legal challenges; it is not a sanctions-driven bill. The aim of the legislation is to develop a culture of compliance with the charter, and two sections of the bill are designed to that specific end.
Section 3 obliges ministers to report at least every five years on steps that they have taken to safeguard local self-government, and section 8 places a duty on members who introduce public bills to Parliament to state the extent to which, in their view, such legislation is compliant with the charter articles.
I turn to the stage 1 report from the Local Government and Communities Committee. I welcome the committee’s support for the bill and its focus on analysing the bill’s legal and practical implications.
As the Faculty of Advocates noted, the bill cannot entrench the charter as some form of constitutional protection for local government in a country with no written constitution. If the bill is enacted, it will provide a check and challenge function only for so long as it remains law and is not amended or repealed. That is the reality for any such bill under the United Kingdom’s constitution, but particularly the other bill that is currently before Parliament that will incorporate international law—namely, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.
In practical terms, the committee is right to note uncertainty as to the legal reach of the charter. Time will tell on that front. Some debate was had in committee as to whether the bill merely sent a message or had far-reaching implications. In my view, the bill, indeed, sends a message—a very important political message—but it also has a substantive legal effect, making compliance with the charter a matter that can now be referred to a court for a ruling when there is a dispute about whether legislation is compliant.
I will briefly mention some amendments that I propose to lodge, should the bill pass at stage 1. The first and most substantive relates to a recommendation that was made by the Delegated Powers and Law Reform Committee in relation to the power in section 6 that would allow ministers to take remedial action in consequence of a declaration of incompatibility by the courts. That is a significant power to delegate to ministers, and the question is whether its use should be constrained in some way. Having reflected on the matter, I can confirm that it is my intention to lodge amendments to attach a super-affirmative procedure to the use of the power, in order to provide the level of scrutiny that is required. I will also lodge amendments to confirm that no criminal offences can be created or amended by the use of the power, and I will reflect further on some technical wording that has been drawn to my attention.
The UK is one of six member states of the Council of Europe not to have given the charter any legal effect in its domestic law. The Scottish Constitutional Convention recommended in 1995 that the Parliament should “embody the principles” contained in the charter—in particular, a principle of general competence. In October 2019, a report by the consultative steering group on the Scottish Parliament, reviewing 20 years of devolution, noted the on-going failure to achieve that. The bill addresses that long-standing concern, and I hope that members will support it.
That the Parliament agrees to the general principles of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
The Deputy Presiding Officer
I remind members that, if they want to take part in the debate, they have to type R in the chat function.14:57
James Dornan (Glasgow Cathcart) (SNP)
As the convener of the Local Government and Communities Committee, I am pleased to speak in support of the bill, which was introduced by Andy Wightman, our colleague on the committee. The comments that follow reflect the collective view of the committee, which—minus Andy—considered the bill at stage 1. Before I go on to them, I thank my fellow committee members, all the witnesses who took the time to give evidence and, as always, our magnificent clerking team. Over the summer, we held a call for views, which received 22 responses. They included well-informed responses from local government, academia, legal experts and others.
As members have heard, the central aim of the bill is to give the European Charter of Local Self-Government a degree of direct effect in our domestic law. The UK is already a signatory to the charter under international law. The Scottish Government told us that it considers itself bound by the charter and that, in its view, it abides by it.
Therefore, the main question that the committee grappled with at stage 1 was: what will the bill actually do? Will it have much effect on local governance at all? A key consideration for the committee was how much of an impact the bill would have. We attempted to gauge that, but we did not find it straightforward. We received evidence to the effect that the bill is somewhat technical or that referred to the symbolic value of passing or not passing it. The prospect of the bill having much financial impact, either on councils or on central Government, or of its leading to a step change in how councils work and provide services, was also doubted.
The Scottish Government said that it is already bound to adhere to the principles that are set out in the bill. A representative from the Society of Local Authority Lawyers and Administrators in Scotland told the committee that there was a
“danger that we exaggerate what the Bill will actually do.”—[Official Report, Local Government and Communities Committee, 18 November 2020; c 32.]
At the same time, many stakeholders viewed the bill as important, necessary and even potentially transformative in terms of the constitutional and working relationship between the state and local government. Some evidence sought to reconcile those two positions by arguing that the bill would be more of a prompt—an enabler of good practice and good partnership working rather than a disruptive game changer—as certain requirements in the bill, such as the requirement for a legislative statement on compatibility, would reduce the risk of future laws or policies being in conflict with the charter articles.
Will the bill be an agent of positive change, or could it have unpredictable, even destructive, effects? We might compare the bill with the Human Rights Act 1998. No one is arguing that the bill ranks equally with the Human Rights Act 1998 in respect of its likely impact, but there are some similarities in what we might call their basic architecture. Both are also alike in incorporating into domestic law a set of principles that are wide ranging, declaratory and somewhat open ended in the language that is used.
I think that most members would agree that, a generation on from the 1998 act, its impact has been resoundingly positive. However, it has thrown up some surprises along the way as it has been tested in the courts. Those surprises have occasionally been challenging and even costly. The 1998 act has also rebalanced power away from the Executive and towards the judiciary, giving it a greater say in determining whether Government acts or omissions are lawful. None of that is necessarily bad in itself, but it is a change, and there is, arguably, the potential for the bill to do the same.
The conclusion that the Local Government and Communities Committee came to is that we should welcome the incorporation of the charter into Scots law. However, that might be called a guarded welcome because, as the Faculty of Advocates and the Law Society of Scotland noted, the full legal reach of the bill is uncertain. If the Parliament agrees to the bill, it should do so with open eyes, alert to the possibility of future cases testing the legal meaning of particular provisions in the charter. That could include cases that touch on policy or even funding issues relating to local government that have not usually been the province of the courts before now.
There are two important matters that help to reassure us. First, incorporating the charter into domestic law would bring us into the European mainstream. Most of our neighbours have gone down that route, and the sky has not yet fallen in. On the contrary, the general view is that doing so has helped to foster a healthier working relationship between central and local government. For instance, there was some evidence that that had made central Governments reassess the way that they consult councils before making important changes. The evidence from Europe is that incorporating the charter into domestic law is more an act of evolution than revolution.
Secondly, no one whom we heard from at stage 1 thought that the bill was likely to mean a rush to the courts. Local government witnesses were unanimously clear that the legal route would be a last resort—a “nuclear option”, as one witness put it—that everyone would be at pains to avoid. The value that witnesses saw in incorporation of the charter was in its role as a backstop. It would enshrine a set of good governance principles in our law and, in so doing, help to level up the working relationship between central and local government.
To put it differently, COSLA and others in local government felt that giving the charter effect in domestic law would help to keep the Scottish Government—and any future Scottish Government—on its toes. That also became the committee’s view, and it summarises why we think that the bill is worth the Parliament’s support.
I note that Mr Wightman and the Scottish Government agree that some amendments will be needed if the bill is agreed to at stage 1. If there is a clear message from the Parliament that it agrees to the general principles of the bill, the committee will, obviously, note that for any future stage 2 scheduling at this late stage of the session.15:03
The Cabinet Secretary for Communities and Local Government (Aileen Campbell)
Did you introduce me, Presiding Officer? I did not hear you.
The Deputy Presiding Officer
I did, but I am happy to do it—[Inaudible.] The cabinet secretary will open for the Government.
Apologies—I think that your sound cut out. Nonetheless, I will proceed.
I thank Andy Wightman for introducing the bill and steering it to this point. That is testament to his long-standing commitment to the topic, and I am happy to respond on behalf of the Government.
I thank the Local Government and Communities Committee for its thoughtful stage 1 report and the clerks who assisted in preparing that report. I also thank those who gave evidence to the committee. Their engagement, expertise and experience helped to shape a report and response from the committee that are really helpful in ensuring that we progress the bill effectively.
The bill is about partnership and co-operation—they are at its heart. The Covid-19 pandemic has shown us once again the importance of collaboration—of national and local government working together to respond to local circumstances in order to keep the most vulnerable in our society safe and essential services available. I take every opportunity to thank local government workers across Scotland for the work that they have done and are continuing to do. It has been a remarkable effort.
Developing and maintaining a close, constructive partnership between national and local government has always been a key priority of this Government. To give a sense of that partnership approach and to illustrate the influential role that local government already has, I will point to some areas of success and to mechanisms that are in place for that joint working.
COSLA is a co-signatory to the national performance framework, which sets out our shared ambitions for a successful and inclusive Scotland, with principles that are underpinned by the shared values of kindness, dignity and respect. We have also jointly launched the local governance review as part of our shared commitment to subsidiarity and local democracy. The review creates an exciting opportunity to promote what could be the biggest shift of power since devolution. We want to ensure that decisions are taken as close as possible to those whom they affect most. We want a vibrant and inclusive democracy that supports local self-determination. Mr Wightman’s member’s bill is therefore welcome, as we hope that it will create the conditions for further, more ambitious changes to how Scotland is governed.
Ensuring that local government’s voice is heard and creating the conditions for meaningful engagement are firmly rooted in our policy development process. There are many examples, across portfolios, of local government playing a significant and inclusive role in the decision-making process and in the governance of Scotland.
Despite the UK Government’s decision to delay its budget until March, we have given local government in Scotland as much notice as possible of its settlement, to assist it with planning and to provide it with security. The Cabinet Secretary for Finance announced last week that we will make available to local government a total funding package of £11.6 billion for 2021-22. That includes a £245.6 million increase in core revenue funding and an additional £259 million of non-recurring Covid funding, which makes for total additional revenue funding of more than half a billion pounds.
We have also shown that we are committed to subsidiarity and local decision making. We have introduced ambitious legislation, such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018, which signalled a significant transfer of power to communities across Scotland. The historic 2018 act introduced the regulations that specifically enable relevant local authorities to request the transfer of responsibilities from Scottish ministers to them.
It is my hope that the bill will reinforce the positive working relationship with local government. The incorporation of the charter into domestic law has been a long-held aspiration of COSLA. Our commitment to supporting the bill sends out a strong signal about the value that we place on local government.
Originally, I took a neutral position on Mr Wightman’s bill, to allow for full diligence to be carried out. That is normal with a member’s bill, because we need to fully understand the bill’s implications and its practical application. There are some issues with the drafting, which I think that technical amendments would help to improve. The issues are not substantial, and my officials have been engaging positively with Mr Wightman’s team to discuss what such amendments might involve. I hope that the collaborative approach to amendments that was achieved with the member in charge of the Period Products (Free Provision) (Scotland) Bill can be replicated with this bill, and I think that Parliament is better served because of that approach.
I recognise that there can be challenges and that, at times, national and local government will not agree. I welcome the position of local government colleagues who said in evidence to the committee that they did not think that much, if any, litigation would arise from the bill. The consistent message was that the bill will strengthen local democracy by ensuring parity of esteem between the various layers of government.
However, the committee’s report contained a key message about the legal uncertainty that the bill will introduce in relation to how frequently it will give rise to litigation, how the courts will handle any future cases, and what is called the “legal reach” of the charter—how far it might stray into areas that have so far been seen as belonging more to the policy sphere than to the legal sphere.
Going to court to resolve issues should always be the last option; it should certainly not be the first. I am sure that we can all agree that unnecessary legal challenges take up time and money that can be better used elsewhere. In his opening speech, Andy Wightman noted that this is not a sanctions-driven bill. It is important that national and local government continue to properly discuss issues and understand different perspectives. If there is anything more that we can do to continue to strengthen that relationship, my Cabinet and ministerial colleagues and I are always willing and open to discussing and considering that.
The Government supports the general principles of the bill, and I have set out how I believe we already act to ensure that local government has a full voice and role in the decisions that we take. We want to continue to engage closely with local government, build on the strong platform of collaboration, cement our strong partnership and improve the lives of the people of Scotland. It is my sincere hope that, as the bill progresses through Parliament, it will amplify that endeavour.
I thank Andy Wightman for bringing the bill to this stage.15:10
Alexander Stewart (Mid Scotland and Fife) (Con)
I am delighted to take part in this debate on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill and to open on behalf of the Scottish Conservatives. I, too, thank Andy Wightman for introducing the bill.
As someone who spent more than 18 years in local government as a councillor, I know how important local democracy is. Councillors and residents know what works best for them and their communities. If we truly believe in the principle of localism, we should trust them to make more decisions for themselves and to have more influence over their budgets and income. That is simply not happening in Scotland. In fact, Scotland is one of the most centralised countries in the world when it comes to local decision making—and the position has got worse in recent years, particularly under the current SNP Government.
Despite many of the arguments that were made at the time, devolution has not brought power closer to our communities; quite the reverse—it has centralised more power in Edinburgh. That is not local government, nor is it local democracy. Our councillors are effectively neutered by diktat from the Scottish Government, and that needs to change.
The proposal in the bill to incorporate the European Charter of Local Self-Government into Scots law is welcome. As has been said, the Scottish and UK Governments have already accepted the principles of the charter, but Scotland is still the only country in Europe in which its articles have not yet been enshrined in law. Many of the principles are already adhered to in Scotland and the rest of the UK. We elect councillors to run our councils, and the councils have wards and ward boundaries that are dealt with by an independent boundary commission, which carries out extensive consultation. Our councils are also able to borrow to support their capital investments.
There are, however, a number of areas in which Scotland does not adhere to the articles of the charter. I will give two examples. First, the charter states that councils should be subject to supervision by a body such as the Scottish Government only to ensure compliance with the law. That is not the case when it comes to planning, with the Scottish Government routinely overturning decisions that are taken by our democratically elected local councillors. In the past year alone, four in 10 council planning decisions were overturned on appeal. The Scottish Conservatives would ban that practice, bringing us into line with the charter.
Secondly, the charter states that councils should be free to decide how to spend their own money and that, as far as possible, grants should not be earmarked for specific purposes. Again, that is not currently done in Scotland. In his evidence to the committee, the convener of Shetland Islands Council suggested that three-fifths of council revenue was ring fenced for national outcomes, making it very difficult for councils to make a difference. That would need to change to bring us into line with the charter.
It is welcome that the Scottish Government and the cabinet secretary have committed to supporting the bill. However, one could argue that significant policy changes require to be put in place to ensure that there is no breach of the law the day after it is put in place.
Section 6 gives Scottish ministers quite extensive powers to make regulations, including the power to amend primary legislation, should it be deemed that existing law is incompatible with the provisions of the bill. Given the SNP’s poor track record on localism, however, we must question whether it is committed to bringing its policies into line with the articles of the charter.
A more fundamental question is whether the bill will achieve its desired objectives. Section 5 enables the Court of Session or the UK Supreme Court to declare that a provision in an act or subordinate legislation within the Scottish Parliament’s competence is incompatible with the charter. That will need to be given further consideration at stage 2.
I welcome the bill and will support it at stage 1. For too long, the Scottish National Party Government has treated local councils with contempt and has undermined local democracy. We in the Scottish Conservatives value the principle of localism and want to do everything within our power to ensure that councils also have that localism objective.
Putting local government in Scotland on the same legislative footing as applies in the rest of Europe is certainly a step in the right direction and one that I very much welcome and support. However, we also need to see meaningful policy change from the Scottish Government if we are truly to meet the principles of the European Charter of Local Self-Government.
The Deputy Presiding Officer
I call Sarah Boyack to open for Labour.15:15
Sarah Boyack (Lothian) (Lab)
I am delighted that we are discussing the incorporation of the European Charter of Local Self-Government. In 1997, the Labour Government signed up to the charter and it ratified it a year later. I am glad that we are here, more than two decades on, to put the charter into Scottish law and empower Scottish local government.
As has been said in the chamber before, in our councils’ response to the pandemic, they have stepped up to the challenge. They have been capable of fundamental change in their service delivery informed by their knowledge and experience of what local communities and businesses need, and they have delivered real and workable solutions.
As a member of the Local Government and Communities Committee, I have worked with colleagues to scrutinise the bill and the intention behind it. I thank all the witnesses and others who have given us evidence and the Parliament’s clerks for the support that we have received from them.
Since I returned to Parliament in 2019, I have been in a position to see just why the bill is so necessary through my conversations with local government representatives. Alexander Stewart referenced the written submission to the committee from the leader of Shetland Islands Council. In talking about the extent to which his budget is now focused on issues that he is working on with the Scottish Government, the councillor described the sense that councils are
“becoming very much like health boards.”—[Official Report, Local Government and Communities Committee, 18 November 2020; c 43.]
I have had feedback from councillor colleagues across the country who have seen their autonomy as elected officials being chipped away by centralised policy decisions.
In introducing the bill, Andy Wightman has aimed to create parity of esteem between the Scottish Government and local government, ensuring that decisions that impact locally are made locally. That is a principle that I and my Labour colleagues whole-heartedly support. The UK was the only one of the 47 member states of the Council of Europe not to have transposed the charter, so it will make an important political statement for us to support the bill today.
Section 2 of the bill places a duty on the Scottish ministers
“to act compatibly with the Charter Articles”,
and section 4 places an obligation on the Parliament to pass legislation
“which is compatible with the Charter Articles.”
That is an important step in ensuring that the work of our elected representatives in the chamber complements the work that elected representatives in our councils are doing to support their local communities.
Section 8 is also of great importance. It requires individual members who bring forward a member’s bill to state whether, in their view,
“the Bill is compatible with the Charter”.
I believe that that gives members of the Parliament the opportunity to work with their council colleagues to strengthen the impact of members’ bills that come before the Parliament by ensuring that they are compliant and can be facilitated by councils in a way that understands local needs and aspirations.
I note that the squeeze on local authority resources has been exacerbated under the SNP Government. Despite voicing its support for initiatives such as the local governance review and the bill, this year’s budget is another disappointment for local government. Local authorities have seen their budgets lose £937 million in non-ring-fenced revenue expenditure since 2013-14.
As I said, the pandemic has highlighted just how dependent we and our local communities are on local government to support us. Councils have shown us the myriad of ways in which they can innovate to respond to crisis. In its submission to the committee, COSLA stated that the bill
“would strengthen local and national governments’ ability to work jointly to improve outcomes in communities across Scotland ... strengthen Scotland’s democracy by ensuring that communities enjoy the same local democratic rights that are already commonplace across Europe and beyond ... deliver the unfinished business of the Scottish Parliament by ensuring that for the first time this partnership between national and local government is built into Scotland’s system of democratic governance, and reflected in its day to day culture and practice”
“ensure that Scotland fully complies with international treaty obligations, and addresses outstanding issues that have previously been identified in this regard.”
I completely agree with COSLA. Those are important principles, and I look forward to Parliament agreeing to the principles of the bill—I hope—this afternoon with cross-party support, and to addressing the detailed issues when it comes to committee.
The Deputy Presiding Officer
I call John Finnie to speak on behalf of the Green Party, and I hand over the chair to my colleague.15:20
John Finnie (Highlands and Islands) (Green)
I congratulate my friend and colleague Andy Wightman on getting his worthy bill proposal to this point. I know how much work is involved, and the commitment that is required, in bringing a member’s bill to Parliament. A team effort is required—I had that support from Steven in my bill team, and Andy Wightman had it from Gillian, Charlotte and Ciaran in his team.
We are here because of Andy Wightman’s forensic approach to all his work, which is reflected in what we are discussing. The bill is about the principle of incorporation of the European Charter of Local Self-Government, and I hope that it will be agreed unanimously. It is entirely in line with Mr Wightman’s long-standing commitment to the principle of subsidiarity and the importance of our local government as a vibrant and—dare I say it—radical local democracy.
We know from the Scottish Parliament information centre briefing that the charter has been in place since 1985 and that all 47 members of the European Council are signatories, including the UK since 1998. I also note from our briefing that it is expected that any new states to join the council would sign the treaty. This is perhaps not for today’s debate, but we would get there with an independent Scotland, and I welcome the opportunity that Andy Wightman has given us to accelerate that process.
We also learn from the briefing that the UK has a dualist legal system in which domestic and international law are distinct and separate from each other and that, in order to give public international law the same legal authority as domestic law, it must be incorporated into domestic law. That would give legal effect to ensure that issues can be enforced by Scottish courts.
The policy memorandum confirms at paragraph 61 that the incorporation of the charter will be achieved by reproducing in the bill the wording of the principles of the charter. It commits signatories to basic rules that seek to uphold the political, administrative and financial independence of local authorities through legislation.
Members have talked about the role of COSLA. In 2013, it established a commission that talked about identifying
“a route map to deliver the full benefits of a shift in power towards local democracy for people in Scotland”.
In his blog, Andy Wightman asks: “Why does this matter?” He goes on to say that the charter
“is designed to provide constitutional protections for local government”,
and to outline why those protections are currently absent and how they relate to our structures. He says that, if the bill is passed, as I hope that it will be, incorporation would allow anyone to
“challenge any executive action of Scottish Ministers or legislation passed by the Scottish Parliament if they believe that either is incompatible with the Charter (which, being international law, has primacy).”
He goes on:
“The Courts will have the power to quash actions”,
“Bill gives ... teeth”
to enable them to do so.
Andy Wightman goes on to say—the cabinet secretary referred to COSLA’s position in this respect—that the bill is not about encouraging legal actions; rather, it is about heightening awareness of the provisions of the charter, ensuring compliance with them and putting
“a duty on Scottish Ministers to promote”
There are undoubtedly issues around centralisation, but those are fundamentally about power struggles and tensions around planning, to which members have alluded. Is local government independent if it is limited in its ability to raise finance? The implications of membership drops for the rural councils—ironically, as a result of the Islands (Scotland) Act 2018—are something that many in the Highlands and Islands find very frustrating. If a central Government of any colour gives a council money and then determines the nature of the spend, that council is not independent.
Let us pass the bill not for the sake of it, important though it is, but because of what it can contribute to our vibrant local democracy and discussion thereon. It is with pleasure that the Scottish Green Party will support Mr Wightman’s motion on the bill tonight.
The Presiding Officer (Ken Macintosh)
I thank my colleague Christine Grahame for handing over the chair. I call Alex Cole-Hamilton, to be followed by Keith Brown.15:24
Alex Cole-Hamilton (Edinburgh Western) (LD)
I offer my thanks and the thanks of my party to Andy Wightman for introducing an important bill to the Parliament. It is a reminder of what an asset he is to the chamber. My party welcomes autonomy for our local authorities and efforts to increase that autonomy wherever we find them, so we will be support the bill today.
Councils have worked in lockstep with the Scottish and UK Governments during the pandemic. Local authority staff have been critical to getting support to those who need it, and we are grateful to them for that. That is why the Scottish Liberal Democrats have repeatedly pressed the Government to ensure that money reaches the front line where it is needed.
Before the pandemic struck, my party had spent years appealing to the Scottish Government to stop hollowing out local government and treating it with contempt. It has handed councils disproportionate cuts year after year, and has stripped them of the power to do what is right for their areas. In addition to councils’ funding settlements being squeezed to a much greater degree than the Scottish Government’s budget has been, greater proportions of their budgets have been ring fenced by ministers for their approved purposes. That has forced local authorities to cut services that people rely on and to increase charges. It is important that we allow our councils the financial freedom to plan their budgets and to tailor plans to what the local community needs.
My party believes that, just like Holyrood, local councils should have the power to raise the majority of the money that they spend. We oppose the centralisation of services that we have seen at the hands of the Government, such as the changes to the police force. We oppose the SNP’s entrenching of the broken council tax, after it promised to scrap it.
This is not the first time that the European Charter of Local Self-Government has been discussed at Holyrood. Back in 2015, during the passage of the Community Empowerment (Scotland) Bill, my former colleague Tavish Scott lodged amendments at stages 2 and 3 to enshrine the principles of the charter in law. When he was proposing that, he said:
“devolution should not stop in this building; rather, we should ensure that local government and those who serve communities, representing all political parties and none, have the ability to use the power of general competence in the most sensible and constructive way for the people whom they serve.”—[Official Report, Local Government and Regeneration Committee, 11 March 2015; c 3.]
Sadly, neither of Tavish Scott’s amendments was agreed to at the time, despite support from key stakeholders, including COSLA. I am glad, however, that we now have the opportunity to make the powers of our local authorities crystal clear, ensuring their autonomy.
The 10 principles of the charter were ratified by all 47 member states of the Council of Europe in 1998, and we should take notice of that unanimous endorsement. If the bill is passed, all bills that are introduced in the Parliament in future will have to be checked for compatibility with the charter, and I welcome that all-encompassing approach.
Protection for local decision making is key, along with financial freedom. The Scottish Liberal Democrats will always stand up for local government, and Liberal Democrat members will support the bill tonight.15:27
Keith Brown (Clackmannanshire and Dunblane) (SNP)
I come to the debate with the benefit, most recently, of being a member of the Local Government and Communities Committee, which has held three meetings to hear and consider evidence from a range of bodies on the issues that are covered by the bill. I wish also to draw on my experience working as a local government officer for nearly two decades, as a councillor for 11 years and as a member of the European Committee of the Regions for six years. I recall supporting incorporation of the charter into Scots law at the Convention of Scottish Local Authorities more than 20 years ago, as a council leader.
It is unfortunate that the contributions from the Conservatives and the Liberal Democrats—they were coalition partners, of course—have been to change the debate into an anti-SNP rant. I refer in particular to Alexander Stewart’s speech. The idea that, during my time in local government, from the 1980s, anybody would have seen the Conservatives, or latterly the Liberal Democrats, as friends of local government is just laughable.
I congratulate Mr Wightman on introducing his member’s bill in a stage 1 debate in the chamber. As has been said, the bill seeks to incorporate into Scots law the European Charter of Local Self-Government, which is a treaty of the Council of Europe that was adopted in 1985 and ratified by the UK in 1998, before this Parliament was even established.
The Council of Europe is one European institution of which the UK remains a member, despite Brexit. Once again, however, the UK remains typically out of step with the rest of Europe, as the UK and Hungary are the only two countries out of 47 not to have incorporated the charter into their domestic legal frameworks. I am conscious that there have been about four different computations of how many countries have signed up to the charter: we will have to get that right by the time we get to stage 2. Certainly, however, the UK’s position undermines any claims that it makes—as was put forward by Alexander Stewart—to be a supporter of what could be called true devolution for local authorities.
Fortunately, in this sphere—if not in others—we in Scotland have the power in our own hands to resist being dragged away from the European mainstream by the Europhobes of Whitehall. Yes—the treaty was ratified in 1998, but ratification does not make law, as the Law Society of Scotland pointed out in its submission, and as the explanatory notes to the bill also make clear. In the legal systems of the UK,
“domestic and international law are distinct and separate from one another”,
and the Law Society agrees with the assessment that
“to give public international law the same legal authority as domestic law it must be incorporated into domestic law.“
The committee received submissions from a range of interested individuals and organisations. Not one of those submissions opposed incorporation of the charter, with most, including bodies such as COSLA and the Society of Local Authority Lawyers and Administrators in Scotland clearly supporting the case for incorporation. COSLA said that
“It would strengthen Scotland’s democracy by ensuring that communities enjoy the same local democratic rights that are already commonplace across Europe and beyond”
and that incorporation
“would strengthen local and national government’s ability to work jointly to improve outcomes in communities across Scotland.”
That is something that we have seen across the country over the past year, so I think that this is an appropriate point at which to reflect on the huge effort that has been put in by local council staff, officers and elected members of all different parties across the whole of Scotland throughout the course of the pandemic. In so many situations, they have been on the front line delivering the help, support and advice that the people and communities that we represent have needed.
As we discussed the bill in committee, it became clear that there were concerns that the bill would not make a difference and that it could instead be a charter for endless and expensive legal disputes between different partners in government. I expect and hope that it will not. To those who have said that they want it to establish real parity of esteem among the various arms of government, I say that I share that hope, but I think that what is much more likely to achieve that is the fantastic role that our local authorities have played during the pandemic, in providing absolutely vital local services to people.
I support the bill’s progress to stage 2.15:31
Alison Harris (Central Scotland) (Con)
The debate about autonomy for local authorities in Scotland has gone on for some time in the Scottish Parliament. Most parties have, at various points and from various perspectives, made the case for councils to have more power. Unfortunately, the only party that seems to be resistant to that is the one that has sat in Government since 2007. In that time, we have seen a complete failure to deliver more control to town halls, and councils have had their funding cut to the bone, in the process.
It could be argued that things are getting worse. Just last month, the Scottish Conservatives revealed that 36 per cent of the planning decisions that were made by councils but then appealed by applicants were overturned. That tells us everything that we need to know about this Scottish Government’s commitment to local decision making.
It is galling for local people to see their council go through a careful planning process in which residents and community councils make their feelings known, the developers are allowed to properly plead their case, and a group of locally accountable members—often from a coalition of more than one political party—reach a measured decision, only for that all to be swept aside when the developers go over the heads of the council to a Scottish Government in Edinburgh that, in one in three instances, rides over the top of the local decision and sides with the controversial development in question. The people had said no, the community groups had said no and the council had said no, yet still the Scottish Government waved the plans through, regardless. Those are major developments that affect people’s everyday lives—wind farms, large housing developments and controversial infrastructure and redevelopment proposals.
It is clear that something needs to be done about that. Incorporating the European Charter of Local Self-Government into Scots law would go at least some way towards strengthening the hand of local government. The umbrella group for Scotland’s local authorities, COSLA, has praised the bill, stating that it will bring Scotland up to speed with other major countries in Europe. It also said that the bill would have a positive impact on its members, saying that
“it is key to building on local”
government’s and the Scottish Government’s
“joint commitment to improve outcomes”
for our communities
“and renew democratic participation across Scotland.”
Enthusing people about the importance of local democracy is key to all that.
In the most recent council elections in 2017, however, voter turnout was just 47 per cent; more people stayed at home than went to the polling station. In some areas, the figure was as low as 39 per cent. If the voters had faith that the people whom they elected locally had more influence on the decisions that impact on their lives, perhaps those disappointing statistics would soon improve.
For too long, devolution has come into the Scottish Parliament without being pushed out the other side to those who need it most. The SNP Government has grabbed powers from both sides, and it still wants more. Establishment of a legal framework that prioritises the importance of community leadership and local accountability would at least begin to turn the tide on that worrying trend. People need to see equality of decision making, so that they can have faith in the system, from the Borders to the Highlands and in all the areas between.
Local councils know their areas and their people best. As such, I will support the bill at stage 1 this evening.15:36
David Torrance (Kirkcaldy) (SNP)
I thank my colleague Andy Wightman for his hard work on the bill.
I served as a councillor on Fife Council from 1995 until I was elected as an MSP in 2011. Many of my fellow MSPs share the experience of having been elected first as a local councillor, then later as an MSP. Most of us who have that experience have seen the relationship between local government and the Scottish Government at first hand and from both sides of the fence. We have seen the tensions that can arise when one political party is in Government, and a different political party is in control in a local authority. We have formed our own perceptions of the strengths and weaknesses of our current system of local government, and of its relationship with central Government.
My constituency includes the town of Kirkcaldy. The first mention of its town council was in around 1582, and in 1644, it became a royal burgh. Therefore, it has a long tradition of local government. As a result of local government reorganisation in the 1970s, the town became part of the Kirkcaldy district in 1975. In 1996, Kirkcaldy District Council became part of Fife Council, through the 1990s reorganisation.
Burntisland is also in my constituency, and its history of local government is even longer than that of Kirkcaldy. It became a royal burgh in 1541, and its local government shared the same fate as Kirkcaldy, which shows the demise of local decision making. Local government does not stand still—it evolves over time. Part of that evolution is the relationship with central Government.
The bill has a European dimension, because it concerns a European charter. Kirkcaldy, which has a population of around 49,000, is twinned with Ingolstadt in Bavaria, which has a population of 127,000. Our respective civic leaders and community groups have been visiting each other since 1962. Burntisland is twinned with Flekkefjord in south-west Norway, which has a population of 9,000. That relationship began in 1946, so it is even older than that between Kirkcaldy and Ingolstadt. Both twin towns sit in local governance systems that are very different to those of Kirkcaldy and Burntisland. Such relationships remind us that other places approach local government differently; therefore, we must always ask ourselves whether we can learn from others and make improvements for ourselves.
I have reviewed the evidence that has been submitted to the Local Government and Communities Committee, and it seems as though we are already bound to comply with the charter, given that it is an international legal instrument. However, no means exist to ensure compliance, and it is not part of our domestic law. The UK Government expressed its support for the European charter by signing it in 2009. As I understand it, the bill would import the charter into Scots law, so it will have direct effect.
The Local Government and Communities Committee received submissions on the bill from a range of sources, including a number of our local authorities, the Faculty of Advocates, the Law Society of Scotland, COSLA and Reform Scotland. The evidence that was submitted to the committee revealed to me that incorporation of the European charter into Scots law has long been argued for by COSLA. COSLA was involved in drafting the charter back in the 1980s, and its 2014 commission on strengthening local democracy recommended incorporation into Scots law.
Beyond COSLA’s legitimate interest in the matter, in 1999, the consultative steering group on the Scottish Parliament argued for incorporation of the charter, and in 2019, when it published its 20th anniversary report, it expressed regret that that had not happened.
In 2015, the UK all-party parliamentary group on reform, decentralisation and devolution commissioned an inquiry to consider how devolution across the whole United Kingdom could be better achieved. The group’s final report recommended transposing the European Charter on Local Self-Government into primary legislation.
I was particularly encouraged that the Local Government and Communities Committee expressed in its stage 1 report that it does not expect the bill to be “disruptive”, and that it
“would act more as a spur for local and central government to cooperate effectively, to make better laws and policies, and to avoid conflict.”
If the Scottish Parliament can enact legislation that will improve relationships between local government and the Scottish Government, I am in favour of it in principle. I am pleased to note that the Scottish Government has expressed support for the bill.15:40
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I congratulate our number 1 pain in the whatever, Andy Wightman, who is so to great and good effect in this particular case, as in so many others.
As a member for 59 meetings of the Local Government and Regeneration Committee in session 4, I fully appreciate the importance of the bill. Its introduction is an important step for both the charter and Scotland, and will ensure maximum impact. The bill takes us towards clarifying and improving the relationship between local and national Government; it provides clarity on how local and national Government should interact and on their mutual responsibilities to each other in terms of engagement, underpinned by law as a firm foundation for that interaction.
The bill removes ambiguity and formalises the Scottish Government’s commitment to local government, whatever the complexion of any future Government, and starts to equalise the relationship between the two, providing for balance through a mediated legal process. The bill enhances understanding of the relationship and respective responsibilities and I believe that it will encourage even greater operational efficiency in both local and national Government.
For both parts of our government system in Scotland, the crisis over the past year has shown what we are capable of and I hope that the bill supports that and that local government is further strengthened. The quality of our democracy will improve with the bill, encouraging action to be taken locally and giving greater access to decision making because there will be more of it that is local. More people outside the directly elected group of people who run things, or think that they run things, will be involved. Decision makers who are accessible make better decisions—that is democracy.
Scottish councillors probably represent more people on average than almost any local politicians in Europe. Indeed, if all the council seats in Scotland were of the same area as one seat that I know of, there would be a mere 12 councillors in the whole of Scotland. Some of the big council seats are simply untenable, but the bill does not address that issue, which we will need to address another day.
A benefit of the bill is adaptability. It places clear parameters on the roles of local and national government and puts responsibility in the hands of communities, with empowerment to take action and the confidence to do so. That means that local government will be even more prepared to apply distinctive solutions to challenges, using local strengths.
Other members have referred to the bill’s technical aspects and the Law Society has said that the implementation period of six months is rather short, which I agree with. There will be considerable changes, so that timescale is not suitable. The second issue is whether a reporting cycle of five years is too long, which I suspect that it is. We need to look at those issues, but that is what stages 2 and 3 are all about. However, the bill fits with what we envisage for local government.
I want to deconstruct here a canard that has run through too many members’ speeches, which is that the SNP Government is a centralising one. In 2007, when we came into power, we found that we had inherited from the Liberal-Labour Administration a situation that saw nearly a quarter of councils’ spending ring fenced. Within months we had reduced that to under 2 per cent. Better research is required by colleagues on other benches. The robust interchanges of political debate are fine, but we should base it on facts. I am happy to support the bill.15:44
Rhoda Grant (Highlands and Islands) (Lab)
I speak in support of the bill, which seeks to incorporate the European Charter of Local Self-Government into Scots law, as others have mentioned.
The charter was created in 1985 by the Council of Europe, setting out 10 principles to protect the basic powers of local authorities. It advocates for the principle of subsidiarity and that local authorities should be able to regulate and manage public affairs under their responsibility in the interests of their populations. We have seen rampant centralisation and the disempowerment of local authorities, so they are in desperate need of this legislation.
The charter ensures that public responsibilities should be exercised by the authorities closest to the people who are affected by their decisions. A higher level of government should become involved only when it is impossible, or less efficient, to deliver at the level immediately below.
If the bill passes, it would allow individuals and organisations to challenge the Scottish Government in court if its laws or decisions were not compatible with the charter, so it is not surprising that many local authorities support the bill.
Covid support has highlighted to me the benefits of decision making taking place at the most local level possible. Local authorities across the Highlands and Islands have, in many ways, very different geographies and socioeconomic pressures to those in the rest of Scotland. The charter would strengthen their ability to have local solutions for local problems.
When I contact councils about delays in making Covid business support available, they tell me that they are waiting for the criteria for distribution from the Scottish Government. It is simply wrong that the Government announces funds and builds expectation, but fails our councils and those who need that support by being tardy with the criteria. The criteria should be set by the councils, because they know their communities.
There is also strong support from Orkney Islands Council and Shetland Islands Council, which, I am sure, hoped that the Islands (Scotland) Act 2018 would meet some of these aspirations. Unfortunately, we have seen little that is tangible from that legislation. The councils know what is best for their communities and how to make the most of the resources that are available to them in their unique geographical contexts.
Implementing the charter could give greater independence to local authorities in their distribution of Covid-19 recovery grants and funding, targeting the businesses and communities that are most in need in their areas. In ordinary times, it would give them flexibility to serve their communities’ needs with the funds that are available.
Sadly, we see local government being increasingly disempowered. The Boundary Commission for Scotland is looking to cut the number of councillors representing the vast rural areas of Highland Council. That would do nothing for local decision making and constituents’ ability to contact their councillors would be made even more difficult.
Incorporating the charter into Scots law would mark a new era of strong, effective and responsive local government that best serves every community, taking into account their local authority’s particular economic, social and geographical needs. I will therefore support the bill tonight.15:48
Gordon MacDonald (Edinburgh Pentlands) (SNP)
I, too, thank Andy Wightman for introducing the bill. At its heart, this is about strengthening our democracy in every community across Scotland, making it more effective, accountable and accessible to the people whom it serves.
The bill incorporates into Scots law 11 articles of the European Charter of Local Self-Government, which was ratified by the UK in 1998. The Scottish Government already adheres to the charter’s principles; nonetheless, the bill is important.
The Local Government and Communities Committee agrees that
“passing the Bill creates the opportunity and space for local and central government to recommit together to an effective, respectful and inclusive working partnership”.
The committee also agrees that
“the Bill would rectify an anomaly: it would mean that Scotland would no longer be one of the last remaining jurisdictions in the continent of Europe not to have given the Charter direct legal standing in domestic law.”
Additionally, the bill highlights that co-operation and collaboration between local and national Government are paramount to a functioning democracy. At no point have we seen that more—nor has it been more essential—than during the past year. The Covid-19 pandemic has required all Government agencies and local authorities to work together to keep people throughout Scotland safe and supported. Every day, we see council employees, national health service staff and a whole range of volunteers and third sector agencies providing support to people who are shielding, the families of key workers, those who have to self-isolate, and individuals who are suffering from Covid and who are in hospital. Those are all fantastic examples of people and organisations working collaboratively to deliver for the people of Scotland. If it had not been for councils, we would not have got tens of millions of pounds-worth of support to the many businesses that have been forced to close due to the pandemic.
As a new member of the Local Government and Communities Committee, I have not yet focused on the detail of the bill. I have tried to highlight the importance of the partnership that already exists between national and local government and why that needs to be protected and supported. I believe that the bill, the local governance review and the work associated with the new fiscal framework for local government are the mechanisms to do that and to ensure that such partnership is based on mutual respect.
Co-operative working between the Government and councils is not new: the concordat between local government and the Scottish Government was signed back in 2008. It aimed to deliver benefits to the people of Scotland, support the Scottish Government in delivering its purposed, strategic directives and national outcomes, and empower local government bodies and their partners to deliver on local priorities.
In more recent years, the SNP Government has committed to local decision making, as has been demonstrated by ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018, both of which signalled a significant transfer of powers to communities across Scotland.
I will be pleased to join colleagues in supporting the general principles of the bill at decision time. Working collaboratively with local government is—and always will be—a priority for me, the SNP Government and, I hope, all other parties represented in the chamber.
The Presiding Officer
I call Fulton MacGregor, who will be the final speaker before we move to closing speeches.15:52
Fulton MacGregor (Coatbridge and Chryston) (SNP)
As other members have said, the Scottish Government values the role of local government and is committed to supporting the bill. I am not a member of the Local Government and Communities Committee, but from what I can tell there is fairly broad cross-party support for and consensus on the bill.
At this stage I should declare an interest, in that I was previously a councillor on North Lanarkshire Council and was a social worker registered with the Scottish Social Services Council.
The Covid-19 pandemic has shone a light on the pivotal role that our councils and their workers play in communities, from teachers and—as members would expect me to say—social workers to the many others who are working throughout these challenging times, often putting the needs of those they serve first, and before their own. However, many other council workers often feel forgotten about, such as refuse collectors, crossing patrollers, workers in registry offices and so many others that it would be difficult to list them all. New roles in councils have been created in the response to the pandemic, including in teams set up to administer the ever-expanding business grants and funding schemes. I pay tribute to the team at North Lanarkshire Council who have worked tirelessly to support local businesses in my constituency. Of course, I extend those thanks to all North Lanarkshire Council and other local government workers.
The committee recognises that, in supporting the principles of the European Charter of Local Self-Government, the bill guides good governance in the local government sector and helps to protect councils’ status, resources and autonomy. Scotland’s local government sector should feel empowered and able to carry out its duties effectively. I believe that following the principles set out in the charter is one way of helping to achieve that.
Developing and maintaining a close, constructive partnership between central and local government has always been a key priority of the SNP Government. That can be demonstrated through the budget bill process, in which—whatever members’ views on the settlement and where the budget should sit—it is clear that the cabinet secretary has an open-door policy with COSLA and others.
The bill will provide an opportunity to ensure that such a culture of partnership and participation is enshrined in Scots law. The Scottish Government is committed to local decision making, and ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018 has already seen a radical transfer of powers to communities across Scotland. We all want a vibrant, inclusive democracy and we support local self-determination. The bill is welcome as it will help to create the conditions for further more ambitious changes to how Scotland is governed.
More communities being encouraged to use the 2015 act to run local resources can only be a good thing—we have all had queries about old sports pitches or accommodation. In North Lanarkshire—again, perhaps after a slow start—there is more evidence of that happening now, of which Kirkshaws neighbourhood centre in my constituency is a good example.
I also believe that local area partnerships could have more teeth. I felt that even back in my time as a councillor. Councils such as North Lanarkshire Council are in themselves massive institutions and often people feel further—metaphorically speaking—from decision making in the civic centre in Motherwell, or whatever the equivalent is for other councils, than they do from Edinburgh or sometimes even from London. We need to take that into account. Local groups, with councillors and stakeholders for a certain town or village, are almost always better placed to make key decisions about our communities. That is something that I think we all believe in.
I want to touch on a point that Alison Harris raised about planning applications. As the local government minister Kevin Stewart will know, I am seeking a round-table event for a number of communities in my consistency, mainly in the Gartcosh and Stepps areas, which have been impacted in recent years by housing developments. In many of those cases, the local authority has rejected an application, but the decision is later overturned. By engaging local communities at an earlier stage and in an on-going way, we can work together to find the right balance between house and infrastructure building and protecting green space. I know from the recent planning bill that a lot of work has been done in that area.
On the matter of green space, there are many great opportunities in our communities to enhance outdoor space and positively impact communities, especially where there is perhaps deprivation. One such example of that is the old Monkland canal in Coatbridge, which was tidied up by volunteers during the lockdown. It is crying out for joined-up working from the Government, the council, Scottish Canals and others—something, incidentally, that I have been working on through the formation of a stakeholder group that I convene, which has already had two meetings. Those are just some thoughts on my constituency.
In conclusion, this Government is committed to local decision making, as is demonstrated by ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018, which signalled a significant transfer of powers to communities across Scotland. I support the general principles of the bill at stage 1.
The Presiding Officer
We move to the closing speeches.15:57
This has been an important debate. Following this bill, it is vital that we see the change that COSLA’s political leadership has agreed that we need on a cross-party basis. Now is the time to review how powers, responsibilities and resources are shared across national and local spheres of government and with communities. It will amuse my local colleagues when I tell them that Stewart Stevenson thinks that there is only 2 per cent ring fencing in this year’s budget.
There can be no meaningful change without leadership and commitment to the three interlinked empowerments—community, functional and fiscal change. The development of one without the other will lead to changes that are superficial. How do you empower communities in service delivery if that is not how national services are delivered locally? In relation to the recent Period Products (Free Provision) (Scotland) Act 2021 we discussed how we need to give local organisations the financial flexibility to change how they deliver in line with local need.
It is important that the bill is followed not by piecemeal change but by real change across the public sector. It is vital to consider the points that Rhoda Grant made about the diversity of Scotland, and the Highlands and Islands in particular, in terms of geography and socioeconomic pressures. The charter would have the ability to strengthen local solutions to local problems.
There are key areas where we need to see a new respect for our councils, not the micromanagement that we saw last summer, when local authorities had to make urgent decisions on the pandemic without any confidence about how the Scottish Government would deliver on consequentials. Indeed, in last week’s budget, we saw our councils praised on the one hand, yet given an underfunded council tax offer on the other.
To give an example of how things need to change in day-to-day legislation, yesterday we debated the short-term lets control areas order during the Local Government and Communities Committee meeting. However, although that gives councils the opportunity to propose a short-term let control order, the power to approve or refuse such an order stays with the minister.
We have now had a decade of cuts to local council budgets, and it is high time that our councils had more power. A key part of delivering on short-term lets would be giving our councils the power to introduce a tourism levy—something that I was working on during the last session of the Parliament—but to date there has been only a consultation on the principle of a tourist levy from the Government, and we will now have to wait until the next parliamentary session for action.
The charter says that local authorities shall be entitled to
“adequate financial resources of their own, of which they may dispose freely within the framework of their powers”,
that councils’ financial resources
“shall be commensurate with the responsibilities provided for by the constitution and the law”,
that they should be of a
“sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks”
and that at least part of their financial resources must come from local taxes and charges
“of which, within the limits of statute, they have the power to determine the rate.”
It makes clear that although measures taken to correct the effect of unequal resources between councils are possible, they must not
“diminish the discretion local authorities may exercise within their own sphere of responsibility.”
All those principles are important.
I hope that the bill will come back and we will be able to pass it at stage 3 during this parliamentary session. I hope that it will provide a new parity, and that the SNP Government will change tack and retreat from the centralisation that has been a hallmark of its time in power. We need both a change in culture and to deliver respect daily.
I hope that members support this bill. It can deliver change that will empower our councils and the communities that they serve. I look forward to seeing that change being delivered.16:01
Graham Simpson (Central Scotland) (Con)
It is a pleasure to speak in the debate. I thank the Local Government and Communities Committee for its work on the bill. It produced a first-class report, and I am only sorry that I was not on the committee to be part of its consideration. As members know, I was a very enthusiastic member of the committee until fairly recently.
I knew that Andy Wightman’s bill was coming up, and, indeed, I was a supporter of the committee dealing with it in this parliamentary session. I consider Andy Wightman to be a friend. We have often been on the same page—although not always. He has been a strong advocate for local government—as have I, but he has gone further than me by introducing the bill. I back the bill and congratulate him on it.
In essence, the bill is about showing respect to local government—something that has been, and is, lacking in this country. The bill aims to strengthen the status and standing of local government by incorporating the European charter into Scots law. That includes making it possible to challenge, in the Scottish courts, any executive action by Scottish ministers within devolved competence or any legislation that is within the legislative competence of the Scottish Parliament and is believed to be incompatible with the charter.
The bill does a number of things, but two of them are really important. It places a duty on Scottish ministers to act compatibly with the charter articles and it places a duty on Scottish ministers to promote self-government.
We could have quite a few debates in the years ahead over that last point. For example, how could it be argued that local self-government was being promoted if powers are centralised? How would the current restrictions on civil liberties be compatible with that? How would year-on-year cuts to council budgets be compatible with that? We could have some fun, and I hope that I am here to see it.
Mr Wightman contends that Scotland is unusual in Europe in not having transposed the charter into domestic law. One of the key questions for the committee was what the impact of the bill would be, and it struggled with that. In some ways, it could be considered symbolic. However, I do not think that that would be the case.
The charter has a number of key principles, which have been mentioned by some of today’s speakers. There have been some good contributions today, most notably by my friend Alexander Stewart, who made a blistering argument in favour of respecting local government.
The committee convener, James Dornan, gave a very considered speech on behalf of the committee. Aileen Campbell said that the bill was about partnership and will strengthen local democracy. Sarah Boyack told us that councillors feel that their autonomy is being chipped away at. Keith Brown was Keith Brown and David Torrance and others were better.
However, the last word should go to Andy Wightman—always a man of independent mind and now at peace with himself as a genuine independent. In his opening remarks he said that local authorities’ standing and powers have been weakened. The bill aims to fix that, which is why we support it.16:05
It is clear that there is cross-party support for the bill and that members recognise and appreciate the unique role of local government in Scotland. As I made clear in my opening contribution, it is a sphere of government that we truly and sincerely value and respect.
James Dornan gave a considered address, which reflected the deep engagement and time that the committee has applied to investigating the practical impact and effect of the bill, and the benefits that it could bring if it is passed. I was struck by John Finnie’s remarks about using the opportunity that the bill creates to ensure that local government in Scotland is vibrant and confident. I agree with that aspiration. We should all endeavour to ensure that that is the practical effect of the bill.
On that basis, I do not accept the narrative that was suggested by some Conservative members who contributed to the debate. Let us not forget that theirs is a party that has pursued a damaging and politically motivated agenda of austerity that has negatively impacted on so many of the most vulnerable, and which flies in the face of the claim that somehow Conservatives are the defenders of communities in this country, when it is national and local government that have had to mitigate and mop up the mess that has been left by their Government.
The reality is that we work collaboratively with COSLA and local authorities. That might not fit the narrative of some. Although I concede that we must always do more, I explicitly mentioned in my opening speech the national performance framework, the local governance review and the Islands (Scotland) Act 2018—which was also mentioned by Gordon MacDonald—because those examples demonstrate that we seek to pursue our ambitions on subsidiarity, because they reflect our respect for local government and because outcomes for our people are always better when we work in partnership with local government.
Keith Brown was right to point out that the pandemic has brought us to a pivotal moment. It has meant that local and national Government have had to roll up our sleeves and focus on what needs to be done. That has demanded deeper engagement and partnership, some of which we do not want to lose as we emerge from the pandemic; culture and practice have shifted considerably during the past 10 months, and we want to retain some of that.
That is why COSLA played a full role in the social renewal advisory board, which recently published its report. Local government and the Scottish Government know that, regardless of whether you have “Councillor” before your name or “MSP” after it, we are all here to serve and empower our communities, to make life better and to make society more equal and fairer. That report and its calls for action come 10 years after the Christie report and show that, despite the progress that has been made, there is still much to do to ensure that we can realise the ambitions that are set out in the national performance framework, which is jointly signed up to by local and national Government, and make our aspirations for our communities realisable, tangible and real.
The bill, along with our approaches to community wealth building and a wellbeing economy, will, I hope, help to steer the country into a space that respects localism and subsidiarity and signals a new chapter in our positive relationship with local government.
I am pleased that the committee did not agree that local government in Scotland has been neglected under devolution, but I am conscious that it agreed that there is room for improvement in the relationship between Holyrood and local government. I take the committee’s views seriously and broadly share its aspirations. It is incumbent on all of us in the Scottish Parliament to ensure that a parity of esteem between the various spheres of government is entrenched in how we work.
As we move forward, the Parliament also has a collective responsibility to listen, to work collaboratively and to empower local government. The Scottish Government has demonstrated its commitment to the principle of the charter, and the strong partnership that exists between local and central Government and the collaborative work that is done each and every day as we respond to the current crisis are testament to that.
The passing of the bill will put the strength of that relationship on to a legal footing, and I know that my local government colleagues feel that it will create the conditions and opportunity to strengthen the relationship and engender a more inclusive working partnership.
The real, deep, intense and positive relationship that local and central Government have had during the Covid pandemic has shown how important the strength of our existing relationship is. Together, we have been able to take the practical and swift decisions that have been needed when they have been needed. We must learn lessons from our response to the pandemic and use Mr Wightman’s bill not to threaten legal action where we might disagree, but instead as a springboard to continue meaningful dialogue, understanding of one another’s points of view and, importantly, the essential collaborative work that improves outcomes for and the lives of the people of Scotland.
We are pleased to signal our support for the general principles of Mr Wightman’s bill at stage 1. I again underline our real appreciation for the huge amount of work that he has put in to get us to this stage and the further dialogue that has been enabled for the Parliament to think through what more we need to do to further empower local government and communities.
The Presiding Officer
I call Andy Wightman to close our debate.16:11
I thank all members who have contributed to the debate. I welcome the widespread support and encouragement and the points that have been raised. I will not get drawn into some of the more political contributions, although it is notable that the charter has been a political document. I gently point out to the Conservatives that Conservative Governments from 1985 to 1997 refused to sign the charter, as they regarded it as an interference with the sovereignty of Parliament. However, I know that the Scottish Conservatives have moved on and that they support local autonomy, and I very much welcome that. I also note that the SNP white paper on independence advocated incorporation of the charter, and I welcome the fact that we will now be able to do that.
Most European countries do not need to do what I propose that we do in the bill. That is either because they have constitutional protections for local government, such as in Germany, where article 28 of the constitution guarantees political and fiscal autonomy, or because they have a monist legal system, which means that international law to which they are a signatory automatically becomes part of domestic law.
As a number of members have pointed out, however, the UK as a whole remains a very centralised state and Scotland, too, has one of the most centralised and concentrated systems of local government. In that regard, I was struck by a comment that was made in oral evidence by Councillor Malcolm Bell, the leader of Shetland Islands Council. He said:
“Scotland likes to think of itself as a very European nation, which is an aspiration that I agree with. However, in terms of its centralisation habits, Scotland is a very British nation. I think that the adoption of the bill would go a long way towards changing that perception.”—[Official Report, Local Government and Communities Committee, 18 November 2020; c 33.]
A number of members talked about the practical impact of the bill, including James Dornan as convener of the Local Government and Communities Committee. It is important to stress that this is principally about a culture change. John Finnie talked about heightened awareness, and it is awareness that the charter articles are law that will, I hope, improve policy making and dialogue between central and local government.
The bill will not in and of itself fix the various issues with local government that members have mentioned, but I hope that the Government will have to think carefully about whether, for example, we are indeed complying with article 9.3, on financial resources. The Council of Europe has established no judicial oversight mechanism in relation to the charter, apart from monitoring missions to member states. In 2014, the monitoring mission noted a number of positives, but also, for example, a failure to comply with article 2, on incorporation, which the bill addresses.
Alexander Stewart talked about financial powers, which is the subject of one of the main political debates that we have in Parliament about the powers of local government. Article 9 and its various sub-articles address that quite well.
The Faculty of Advocates noted issues with article 4, and Alex Cole-Hamilton mentioned his former colleague Tavish Scott arguing for a power of general competence. That is indeed a legal obligation under article 4.2.
Professor Himsworth told the committee that current arrangements for local taxation and rate-setting powers are “pretty precarious” in terms of compliance with article 9.3.
Members have hinted that the articles are drafted in broad terms and that the courts might have difficulty interpreting them. Of course, they were negotiated as broad articles so that they would be acceptable to 47 countries with very different constitutional and democratic traditions.
Unlike its more famous cousin, the European convention on human rights, which has a judicial mechanism built into it, the charter does not. There has been very little litigation in Europe on the charter. If any dispute arises—as it no doubt will in due course—and ends up in the Scottish courts, they will have the task of doing what they do day in, day out, which is interpreting statute and the articles. I am confident that, over time, the Scottish courts will have no problem in doing that.
Alison Harris mentioned low turnouts at elections. Across Europe, countries have turnouts as high as 80 per cent in many cases. Where local government has power, people take note, they participate and they benefit. David Torrance reminded us of the ancient history of local government—Kirkcaldy’s council was founded in 1582. I welcome Stewart Stevenson’s backhanded compliment, and I commend him for his astute and perceptive analysis. Rhoda Grant was right to highlight the state of local government in the Highlands, with Highland Council being a very large authority and Orkney Islands Council being a very small authority. Sarah Boyack hinted that the bill is an opportunity for a reset of relationships.
Members’ bills take quite a bit of effort, and I would like to thank my staff, Charlotte Maddix and Gillian Mackay, for their hard work and support over the past three years.
In January 2020, the Parliament voted to fly the flag of the Council of Europe outside this chamber, in recognition of the UK’s continued membership of the council and the Parliament’s commitment to human rights, democracy and the rule of law. Let us vote tonight to deliver the aspiration of campaigners for devolution and to join the rest of Europe and incorporate this important treaty into Scots law.
4 February 2021
Vote at Stage 1
Vote at Stage 1 transcript
The Presiding Officer (Ken Macintosh)
We come to decision time. The question on the motion on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill is the only one to be put as a result of today’s business.
I will put the question in a second. I am conscious that members are voting online, so I am going to presume agreement. I only want members to—[Interruption.]
[Inaudible.]—in the chat box. I am aware that some members support the bill, but I want to know whether anybody does not support the bill, in which case I will have to run a vote.
I have a point of order from Edward Mountain before I have even started.
Edward Mountain (Highlands and Islands) (Con)
On a point of order, Presiding Officer. I am sorry, but I could not hear a word of what you were saying, because somebody from broadcasting was walking all over your speech. Could you repeat what you said, please, so that we can make sure that we do the right thing?
The Presiding Officer
Thank you for that. I am happy to do so. The microphones came on here, too, but I thought they did so only briefly.
To confirm, there is only one question to be put, which is on the motion in the name of Andy Wightman. Before I do that, I ask members not to indicate yes if they support the bill. Those who object to the bill should put an N in the chat box. If I see more than a hundred yeses, I will not be able to find the nos. Members need to indicate only if they disagree with the question.
The question is, that motion S5M-23963, in the name of Andy Wightman, on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill at stage 1, be agreed to. Members should just put an N in the chat box if they disagree.
Motion agreed to,
That the Parliament agrees to the general principles of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
The Presiding Officer
The general principles of the bill are agreed to.
4 February 2021
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
First meeting on amendments
Documents with the amendments considered at the meeting on 24 February 2021:
First meeting on amendments transcript
Item 3 is stage 2 consideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Our fellow committee member Andy Wightman is the member in charge of the bill and will move and speak to his amendments. I am pleased to welcome the Cabinet Secretary for Communities and Local Government, Aileen Campbell, to move and speak to amendments on behalf of the Scottish Government.
I will make some brief comments before we begin, because these are our first remote stage 2 proceedings. I will take things a little slower than I would normally, particularly when it comes to disposal of amendments after a debate.
If you wish to object to agreement of an amendment—that is to say, if you want to put it to a vote—please raise your hand when I call that amendment, to register your objection. I hope that that will be captured in the gallery view of proceedings. However, to be sure that your objection is noted, I suggest that you type “Object” or “No” in the BlueJeans chat box. I will pause to take note of whether anyone has objected in that way.
If there are any votes on amendments, I will call the vote alphabetically by roll call, to aid recording and transparency. I will put the question on the amendment and ask each member in turn whether they agree or disagree to the amendment or wish to abstain. My vote will be recorded last, and I will then read out the result.
Interventions on someone’s speech are, as ever, permitted, but bear in mind that it is harder to catch a speaker’s attention in a remote debate and that broadcasting needs a second to catch up. Overall, I would encourage you not to intervene if you have the option instead of making your point in a short speech.
I will call those who have amendments that are being considered today in the usual order. If any member wishes to contribute to a debate in a grouping, even when they do not have an amendment in the group, they should catch my attention by typing “R” in the chat box.
Section 1—The Charter Articles
Amendment 1, in the name of the cabinet secretary, is in a group on its own.
The Cabinet Secretary for Communities and Local Government (Aileen Campbell)
Good morning to the committee. Before I describe the detail of amendment 1, I extend my thanks to Mr Wightman and his team for the helpful discussions and collaborative work in the lead-up to stage 2 of the bill. The amendments that he and I have lodged will lead to an improved bill—subject, of course, to the committee’s agreement to those amendments.
Amendment 1 is an important amendment that needs some explanation. It would ensure that the charter is applicable, subject to any reservations, objections or interpretative declarations by the United Kingdom. That is important because, as it stands, the bill does not reflect the two declarations made by the UK in relation to the European Charter of Local Self-Government.
The first declaration provides that the charter applies to councils in Scotland under the Local Government (Scotland) Act 1994. That is mentioned by Mr Wightman in the policy memorandum to the bill and is useful in ensuring that the bill does not apply to any other bodies that exist or might be established in future that have functions that are similar to those of local government. Currently, the best potential example in Scotland might be the national park authorities. The second declaration simply provides that the UK considers itself bound by all the paragraphs in part 1 of the charter, in accordance with article 12. The declaration reflects the menu structure of the charter.
The effect of the amendment is simply to ensure that incorporation exactly mirrors the UK’s international obligations in relation to the charter. Neither of the declarations impact on the policy aims of the bill, and neither does amendment 1. However, it is necessary to ensure that the bill is compatible with the UK’s international obligations.
The policy intention of the bill is to achieve the incorporation of the charter into domestic law in Scotland in order to give it legal effect and allow compliance with the charter to be enforced in the Scottish courts. Amendment 1 will ensure that that intention is fulfilled. Inclusion of reference to the declarations is consistent with incorporation and would avoid any potential for confusion.
Without such an amendment, there may be an argument that the bill is not compatible with international obligations. As such, there would be a risk that the bill could be challenged under section 35 of the Scotland Act 1998.
I apologise, cabinet secretary, but I have been told that the first amendment should be amendment 17. I will suspend the meeting to get that sorted out.11:21 Meeting suspended.
11:26 On resuming—
I invite the cabinet secretary to come back in.
Thank you, convener. Given the necessity to explain the rationale behind amendment 1, I will repeat a wee bit of what I said before we were cut off.
Without amendment 1, there could be an argument that the bill is not compatible with international obligations and there would be a risk that the bill could be challenged under section 35 of the Scotland Act 1998. That would prevent the bill from being submitted for royal assent. The amendment removes that risk.
Amendment 1 also deals with other risks. The UK, and not Scotland, is a party to the charter; it is therefore an international obligation of the UK. The subject matter of international relations is reserved to the UK Parliament by the Scotland Act 1998. Although we can make some laws in that area—such as this bill—if we did not pass amendment 1 and the UK departed from the terms of the treaty at some point in the future, it would present some risks. We would still be bound by international law to comply with the charter under the terms set by the UK, but we would have this act, which would now say something different. That issue would need to be resolved.
If the area was within devolved competence, the Scottish Parliament could legislate—but what if it was not within devolved competence? It might not be as simple as amending the act to make it compliant with the terms set, should we wish to do so. Amendment 1 removes those risks. It provides for a flexible approach in incorporating the charter and gives effect to the treaty in accordance with the UK’s international obligations.
Finally, this type of provision is not unusual. For example, the amendment is similar to the provisions included in section 1(3) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and section 16(2) of the Commissioner for Children and Young People (Scotland) Act 2003. I hope that the committee supports it.
I move amendment 1.
Andy Wightman (Lothian) (Ind)
I echo the cabinet secretary’s opening remarks and thank her and her team of officials for their constructive engagement up to this point. Amendment 1 is one of the amendments lodged by the cabinet secretary, Aileen Campbell, to which I did not add my name in support. That is due to the fact that I did not have time to consider it fully ahead of the lodging deadline; indeed, this is the first time that I have heard the justification for the amendment.
I understand the rationale for the amendment as presented by the cabinet secretary. I emphasise that there is nothing problematic in either of the two declarations that are referred to by the cabinet secretary, which were made by the UK when it ratified the treaty. However, my reason for opposing the amendment at this stage is broader and is one of principle.
I do not believe that the Scottish ministers should be bound by the charter articles only to the extent that the UK, as a state, is bound by those articles in international law. My view is that the incorporation of the charter into Scots law should subsist for so long as the bill, if enacted, is not amended or repealed, even if the UK departs from the terms of the charter at the level of international law.11:30
As I understand it, the effect of amendment 1 would be that if the UK made new declarations, the content of the obligations under the bill would change. Because amendment 1 seeks to mirror the UK obligations internationally, as they
“may be in force from time to time”,
it would, in my view, undermine the policy intention and put the on-going policy purpose of the bill squarely in the hands of the UK Government. That is a strange policy position for any member of the Scottish Parliament to adopt. I believe that, in any event, it is likely that a court would interpret the charter articles by reference to the two existing UK declarations, without the need for amendment 1, as they were the basis for UK ratification in 1988. I do not believe that amendment 1 is necessary for that reason.
If, in the future, further declarations were made on behalf of the UK state, a Scottish Government could reflect those new declarations or reservations by seeking to amend the act in primary legislation. I would prefer a process that would allow consideration as to whether any new limitations on the UK’s international law obligations need to be reflected in the act as a matter of domestic law, rather than a situation where that would be automatic, which I believe would be the effect of amendment 1.
Finally, on the drafting level, the language of amendment 1 appears to be a straight carry-over from section 1(3) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. However, as a Council of Europe treaty, the charter uses language of declarations and denunciations and, so far as I am aware, there are no provisions in the charter for “objections”, which is one of the terms that is used in amendment 1.
I am not supportive of amendment 1 at this stage. I would like to have further conversations with the cabinet secretary about its exact purpose and whether it could stray into reserved matters. This is the first that I have heard of that concern so, rather than vote amendment 1 through at the moment, I would prefer to have conversations in advance of stage 3. However, I am in the hands of the committee as to what you wish to do with the proposal that is before you.
Thank you. Cabinet secretary, would you like to wind up?
I have a great deal of sympathy with much of what Andy Wightman has set out. I recognise that the issue emerged fairly late in the day, but we cannot ignore it. In pursuit of the positive outcome that the bill will bring, we need to be live to the risk that the bill might not receive royal assent, for the legal arguments that I have set out. Amendment 1 would remove that risk, but it would not change the policy intent. As Andy Wightman pointed out, that provision has already been presented within other bills, such as the UNCRC bill and the 2003 act, as I mentioned. Therefore, although it is in within that constitutional framework, it is not an unusual provision within a bill. It is not new; it has been used and has been inserted into other bits of legislation. It takes away the risk that the bill might not receive royal assent.
In pursuit of getting the bill to the place where we want it—which is passed and enacted—I believe that removing that risk is worth agreeing to amendment 1, so I press amendment 1 in my name. However, ahead of stage 3, we commit to continuing the dialogue with Andy Wightman to further reflect on refinements or suggestions that he might wish to make. The risk is there, so it is important that I point that out to the committee and I hope that you understand that I do so in the pursuit of ensuring that the bill gets to the place where we want it to be, which is enacted and doing the positive things that we all agree that it can achieve. We will continue to engage with the member who is in charge of the bill ahead of stage 3, but I press amendment 1.
The question is, that amendment 1 be agreed to. Are we agreed?
Andy, I think that you oppose the amendment, but I cannot see anything in the chat box.
My understanding is that I do not have a vote, convener.
Oh right—my apologies.
Amendment 1 agreed to.
Section 2—Duty to act compatibly with the Charter Articles
Amendment 2, in the name of Andy Wightman, is grouped with amendments 3 and 4.
My amendments 2 and 4 are technical amendments to address an ambiguity in language in section 2(2) that was drawn to the committee’s attention in written evidence by Professor Chris Himsworth. It relates to how the definition of “act” as including failure to act in section 2(2) interacts with section 2(1). The formulation that is proposed in the amendments provides for better consistency of language between sections 2(1) and 2(2). I believe that it is clearer and more effective in making acts and failures to act challengeable in court if they appear to be incompatible with charter articles. Otherwise, the nature of the duty on ministers in section 2 and its effect will remain unchanged.
The cabinet secretary’s amendment 3 helps to clarify what is excluded from the section 2 duty on the Scottish ministers to act compatibly with the charter, and for that reason I support amendment 3.
I move amendment 2.
Before we go any further, I will suspend the meeting.11:37 Meeting suspended.
11:39 On resuming—
Section 1, as amended, agreed to.
Schedule 1 agreed to.
Section 2—Duty to act compatibly with the Charter Articles.
Amendment 2, in the name of Andy Wightman, is grouped with amendments 3 and 4.
My amendments 2 and 4 are technical amendments to address an ambiguity in language in section 2(2) that was drawn to the committee’s attention in written evidence by Professor Chris Himsworth. It relates to how the definition of “act” as including failure to act in section 2(2) interacts with section 2(1). The formulation that is proposed in the amendments provides for better consistency of language between sections 2(1) and 2(2). I believe that it is clearer and more effective in making acts and failures to act challengeable in court if they appear to be incompatible with charter articles. Otherwise, the nature of the duty on ministers in section 2 and its effect will remain unchanged.
The cabinet secretary’s amendment 3 helps to clarify what is excluded from the section 2 duty on the Scottish ministers to act compatibly with the charter, and for that reason I support amendment 3.
I move amendment 2.
As Mr Wightman said, amendments 2 and 4 are technical ones that deal with the way that the critical duty in section 2 is interpreted and applied. The discussions on the issue were probably the longest and most technical ones between our teams. I am pleased that we were able to work together and I agree that the new formulation of the duty as proposed by Mr Wightman clarifies its effect and will ensure that section 2 works as intended.
My amendment 3 is a technical amendment that amends the exclusion from the definition of “functions” in section 2(2). The exclusion means that the section 2(1) duty does not apply to the preparation or introduction of bills, or the exercise of other functions in relation to bills. Essentially, amendment 3 makes two minor adjustments. First, it clarifies the intended effect by excluding from the section 2(1) duty functions that specifically relate to bills rather than primary legislation more broadly.
Secondly, the amendment replaces the term “promotion”, as that is not a term that is normally used to describe the progress of a bill through Parliament. The term “promotion” might not cover some of the Scottish ministers’ parliamentary and non-parliamentary functions in relation to bills. For example, the function of lodging a motion to withdraw a bill in accordance with rule 9.13 of the Parliament’s standing orders would not be “promotion” of the bill. The effect of amendment 3 is to make it clear that the functions that are excluded from the section 2(1) duty are not only the preparation or introduction of bills but the exercise of other parliamentary and non-parliamentary functions in relation to bills.
Accordingly, I ask members to support my amendment 3 and Andy Wightman’s amendments 2 and 4.
Amendment 2 agreed to.
Amendment 3 moved—[Aileen Campbell]—and agreed to.
Amendment 4 moved—[Andy Wightman]—and agreed to.
Section 2, as amended, agreed to.
Section 3—Duty to promote local self-government
Amendment 5, in the name of the cabinet secretary, is in a group on its own.
The purpose of amendment 5 is to clarify the scope of the consultation duty in section 3. It will amend section 3(4) to specifically require the Scottish ministers, in complying with their duties under sections 3(1) and 3(2), to consult
“such persons appearing to them to be representative of the interests of local authorities”.
That covers consultation with the Convention of Scottish Local Authorities, the Society of Local Authority Chief Executives and Senior Managers and any other similar representative body, and local authorities. I believe that it is right that the interests of local authorities should be highlighted as being of special importance, given the bill’s purpose and the fact that consultation is an essential part of the duty to promote local self-government.
Amendment 5 will also require the Scottish ministers to consult
“such other persons as they consider appropriate”.
That covers any other person whom the Scottish ministers consider to have a particular interest in local self-government and the autonomy of local authorities. That would include academics with relevant expertise in relation to those matters.
I move amendment 5 and ask members to support it.11:45
I have nothing to add to what the cabinet secretary said on amendment 5, which I support.
Amendment 5 agreed to.
Section 3, as amended, agreed to.
Section 4—Interpretation of legislation
Amendment 6, in the name of the cabinet secretary, is grouped with amendments 7 and 8.
Amendments 6 to 8 are minor technical amendments that make it clear that the interpretation duty in section 4 is to apply only to acts and subordinate legislation to the extent that their provisions are within the legislative competence of the Scottish Parliament. I ask members to support all the amendments in the group.
I move amendment 6.
I have nothing to add to what the cabinet secretary said. I support all three amendments in the group.
Amendment 6 agreed to.
Amendments 7 and 8 moved—[Aileen Campbell]—and agreed to.
Section 4, as amended, agreed to.
Section 5—Declaration of incompatibility
Amendment 9, in the name of Andy Wightman, is grouped with amendments 10 and 11.
Amendment 9 is a technical amendment to provide clarity that the court that is referred to in section 5(5)(a) is the Supreme Court of the United Kingdom. The amendment responds to a point that Professor Chris Himsworth raised in his written evidence to the committee.
Amendments 10 and 11 are technical amendments that, together, adjust the positioning of the word “only” in section 5(7). The effect is to provide greater clarity that a declaration of incompatibility may be made in respect of a provision only if the provision is within the legislative competence of the Scottish Parliament.
I move amendment 9.
As Mr Wightman said, the amendments in this group are minor and technical in nature. Amendment 9 is a clarifying amendment that simply makes it explicit that the supreme court that is referred to in section 5(5)(a) is the Supreme Court of the United Kingdom. Amendments 10 and 11 make minor adjustments to clarify the effect of section 5(7).
I support Andy Wightman’s amendments 9 to 11 and I ask members to vote for them.
I have nothing to add except that I will press amendment 9.
Amendment 9 agreed to.
Amendments 10 and 11 moved—[Andy Wightman]—and agreed to.
Section 5, as amended, agreed to.
Section 6—Power to take remedial action
Amendment 19, in the name of Andy Wightman, is grouped with amendments 13 and 13A.
Amendment 19 addresses an issue that the Delegated Powers and Law Reform Committee raised in a letter to me of 9 October 2020 and in its report on the bill. It is not the policy intention that the delegated power in section 6 should be used to create criminal offences or modify existing offences. Amendment 19 will make that clear in the bill and I am hopeful and confident that that will address the issue that the DPLR Committee raised.
Amendment 13 is a substantive policy amendment that will introduce a super-affirmative procedure for regulations that are made under the powers that are delegated to ministers by section 6. The DPLR Committee, in its stage 1 scrutiny of the bill, and the Law Society of Scotland, in its stage 1 written evidence to the committee, commented on the breadth of those powers.
The delegated powers under section 6(1) are intentionally broad in order to ensure that they can be used to address a declaration of incompatibility, however the courts choose to express it. The powers are available to the Scottish ministers only in very specific circumstances—namely, in the event that a court makes a declaration of incompatibility in respect of a provision of an act or subordinate legislation and if it considers it “necessary or expedient” to use the powers in consequence of such a declaration.
Having reflected on the feedback in the stage 1 evidence, I decided that additional checks and balances would be appropriate in relation to the powers in section 6. Amendment 13 proposes a super-affirmative procedure, which is the most appropriate way to deal with the issue. The effect of the amendment will be to introduce a super-affirmative procedure and ensure that there is enhanced scrutiny of any regulations that Scottish ministers make under section 6(1). The amendment will introduce a period of at least 60 days during which the Parliament may undertake the required scrutiny.
That will be facilitated by a statement that will have to accompany a draft of the proposed regulations. In the statement, ministers will have to outline clearly, first, the nature of the incompatibility that the draft regulations relate to; secondly, how they will address the incompatibility; thirdly, whether they include any provision that goes beyond what is necessary to address the incompatibility and, if so, why that was included; and finally, why ministers propose to use the power under section 6(1) rather than remedying the incompatibility through other action, such as by introducing primary legislation.
The cabinet secretary’s amendment 13A is an amendment to my amendment 13 that seeks to add the possibility to expedite the procedure by dispensing with the 60-day pre-laying period. I understand the need for that in the context of other legislation such as that on human rights, under which ministers might have to act quickly as a consequence of a declaration of incompatibility, but I do not believe that the remedial action powers in the bill will ever require an expedited procedure.
A declaration of incompatibility by the courts would not affect the validity or continuing operation of a provision, so the law would not need to be changed immediately as a consequence of a declaration. Furthermore, it is very unlikely that a case will arise related to the bill that is so urgent that the 60-day pre-laying period will need to be dispensed with. If there is ever such a situation, there will always be the option of emergency legislation. For that reason, I do not support amendment 13A.
I move amendment 19.
Mr Wightman’s amendment 19, which provides that regulations under section 6 must
“not create, widen the scope of, or increase the penalty for, a criminal offence”,
deals with an issue that the DPLR Committee raised at stage 1. I am happy to support the amendment.
Andy Wightman’s amendment 13 will require that, at least 60 days before Scottish ministers lay a Scottish statutory instrument that contains regulations under section 6, they must lay before Parliament a draft of the regulations and an explanatory statement. This amendment was also lodged as a response to concerns that the DPLR Committee raised at stage 1. Mr Wightman responded by proposing that the power in section 6 should be subject to a super-affirmative procedure, and I am pleased to support amendment 13.
I believe that my amendment 13A, which is an amendment to Andy Wightman’s amendment 13, will help to future proof the bill. Its effect is to allow for a draft SSI to be put before Parliament before the expiry of the 60-day period that is required in amendment 13. Scottish ministers would need to explain why the 60-day requirement was not being met.
I accept the position that Andy Wightman set out in his letter to the committee dated 19 February, which is that
“the law will not need to be changed immediately as a consequence of a declaration”
of incompatibility and that
“it is unlikely that issues related to this Bill—e.g. local government law—would require such an expedited process”.
However, I emphasise the word “unlikely”. It does not mean never, so the prospect is not eliminated.
Amendment 13A will provide for an exception to allow the additional pre-laying period of 60 sitting days to be dispensed with. If there is no exception, that period will apply to all regulations under section 6(1), on top of the conventional affirmative laying period of 54 days. That means that the period from the laying of draft regulations and an explanatory statement to the making of the SSI could be 114 sitting days. Depending on when in the year the draft regulations and explanatory statement were laid, that could equate to up to eight months.
The committee commented in its stage 1 report on the legal uncertainty that arises from the bill, which was also mentioned in members’ contributions to the stage 1 debate. That uncertainty means that the bill should provide a degree of flexibility in the procedure that will be put in place by amendment 13. My amendment 13A seeks to provide an exception for use in unforeseen circumstances where it would be desirable to act more quickly than the procedure under amendment 13 will allow, but the circumstances do not justify an emergency bill.
Amendment 13A will not eliminate the elements that will be put in place by amendment 13. It will retain the requirement for the Scottish ministers to lay before Parliament draft regulations and an explanatory statement before they lay a draft SSI that contains the regulations for approval. Amendment 13A will also require the Scottish ministers to explain to the Presiding Officer why the 60-day requirement was not being met.
Crucially, it will not prevent effective parliamentary scrutiny, as the draft SSI will still be subject to the affirmative procedure with the conventional laying period of 54 days. That will mean that regulations cannot be made without parliamentary scrutiny and approval. That is an important point and I stress it.
Amendment 13A offers a practical and sensible solution to ensure that the bill will provide the correct balance of flexibility and scrutiny where there is a need to act more quickly than is provided for under amendment 13. Scottish ministers are unlikely to rely on the exception to the process under amendment 13 often, but I hope that members are persuaded that there may be circumstances in future where the exception will be required and that it is better to build in that flexibility now.
I urge members to support my amendment 13A and Andy Wightman’s amendments 19 and 13.
Amendment 19 agreed to.
Section 6, as amended, agreed to.
After section 6
Amendment 13 moved—[Andy Wightman].
Amendment 13A moved—[Aileen Campbell]—and agreed to.
Amendment 13, as amended, agreed to.
Section 7—Power to remove or limit retrospective effect of decisions etc
Amendment 14, in the name of Andy Wightman, is grouped with amendments 15 to 17.12:00
Amendments 14 and 15 are technical amendments that would provide for a slight restructuring of section 7(1)(b) to make it clear that the test that is set out in subparagraph (ii), like the one that is set out in subparagraph (i), is something on which the court is required to reach a view, rather than it just being a matter of fact.
Amendment 16 is a technical amendment for clarification. Section 7(1) currently states that one of the circumstances in which a court has the power to remove or limit the retrospective effect of a court decision, or to suspend its effect, is, as per paragraph (b), when pre-existing subordinate legislation is found to be “incompatible”. At present, that is defined by reference to when “this Act” comes into force, but that risks causing uncertainty because there is no single date on which the act will come into force. Therefore, the effect of amendment 16 is that the test would be whether “section 2” is in force.
The reason for amendment 16 is that, as soon as section 2 is in force, ministers will be under a duty to ensure that anything that they do, including making subordinate legislation, is compatible with the charter. As a result, if charter-incompatible subordinate legislation were to be made after that date, that would constitute a breach of the section 2 duty. The section 7 powers are already available for that scenario by virtue of section 7(1)(a).
Amendment 17 is another technical amendment, which clarifies that what determines the availability to a court of the section 7 powers is the nature of the legislation—for example, subordinate legislation when primary legislation does not prevent the removal of the incompatible subordinate legislation—and not which court it happens to be. As the bill is drafted, there is a risk that section 7(1)(b)(ii) could be misinterpreted. Amendment 17 would remove the risk of misinterpretation by rewording the provision as the converse of the condition in section 5(4)(b).
I apologise, convener. Those are technical amendments, but I assure the committee that they are worth while, and I would welcome support for them.
I move amendment 14.
As Andy Wightman said, amendments 14 to 17, which I support, are technical amendments that will improve clarity in section 7.
Amendment 14 agreed to.
Amendments 15 to 17 moved—[Andy Wightman]—and agreed to.
Section 7, as amended, agreed to.
Sections 8 and 9 agreed to.
After section 9
Amendment 18, in the name of the cabinet secretary, is in a group on its own.
Amendment 18 will insert a new section that confers on the Scottish ministers the power to make ancillary provision. It is a positive change, which I hope will improve the bill. The amendment will insert a standard provision, which is a feature of many bills that pass through the Parliament, including the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which is another incorporation bill.
The purpose of conferring the new power on the Scottish ministers is to allow for greater flexibility in giving full effect to the act or any provision that is made under it. Although ancillary provisions are not always needed, they provide a useful implementation tool and safeguard. They are used proportionately and appropriately, for instance when consequential provision is required to make necessary changes to related legislation. Further, incidental or supplementary provision might be required to address any oversight or unforeseen situation. That might involve filling in some detail that is consistent with, but missing from, the resulting act and is required to make it work.
Transitional, transitory or saving provision might also be required to deal with any legislative changes made by virtue of the act, in particular by regulations under section 6(1). That could help to tailor the application and effect of those regulations before the new law comes into force. It could also help to manage the impact of any changes on the existing functions of local authorities. Given the potential need for incidental, supplementary or consequential provision, the power expressly enables the modification of any enactment. That includes the act itself.
The ancillary power is limited, in that it must be used only where
“appropriate for the purposes of, in connection with or for giving full effect to this Act or any provision made under it.”
It would be outwith the scope of the power to use it to subvert or undermine the substantive effect of any of the act’s provisions. It could not be used to make provision that is contrary to or inconsistent with the act’s purposes or provisions.
Without the power to make ancillary provisions, it might be necessary to return to Parliament with another bill to deal with a matter that is clearly within the scope and policy intention of this bill. Again, I emphasise the need for flexibility.
Finally, any regulations made under the proposed new section would be subject to the affirmative procedure and would therefore require to be closely scrutinised and approved by Parliament. The Delegated Powers and Law Reform Committee, in particular, carefully scrutinises the scope and substance of any subordinate legislation that contains an ancillary provision.
I move amendment 18 and ask members to support it.
I hope that members are familiar with ancillary provisions, because they often appear in bills. However, they are rarely scrutinised. My bill contains no ancillary provisions, because I considered that none were necessary. The committee is now being invited to decide whether ancillary provisions should be inserted by amendment 18.
In discussions over the past few weeks with the cabinet secretary and her officials, I expressed scepticism about the necessity of such provisions and emphasised that the onus is very much on the cabinet secretary to justify here, before the committee, why they are necessary, their precise scope, and whether, in particular, regulation-making powers that can modify the act itself are necessary. This is the first time that I have heard on the record the precise purpose of ancillary provisions—when they can and cannot be used, and the role of the DPLR Committee—all of which is very helpful for members. On balance, I am satisfied that the cabinet secretary has set out, for the record, the purpose of ancillary provisions. I am content—although not with the greatest enthusiasm—to recommend that the committee supports amendment 18.
I am grateful to Andy Wightman for indicating his support for amendment 18, albeit with the caveat that he outlined. I reiterate to the committee that this is a standard provision that enables us to have greater flexibility and give full effect to the act or any provisions made under it. The power is limited and will have appropriate scrutiny attached to it. Its use will be scrutinised under the affirmative procedure. The power would be used proportionately and appropriately, with the aim of implementing the bill’s provisions fully, effectively and efficiently, in accordance with the will of Parliament. I underline again those parameters, which set out clearly that it will be for Parliament to scrutinise any use of the ancillary power, which gives us the flexibility that will be necessary for the bill. However, I repeat that the power would be used proportionately and appropriately, if at all. I am pleased that the member has indicated his support and urge members of the committee to do likewise.
Amendment 18 agreed to.
Sections 10 and 11 agreed to.
Long title agreed to.
That ends stage 2 consideration—
Convener, I was not given the chance to wind up on the group that included amendments 13 and 13A. I say for the record that I look forward to some further conversations on amendment 13 as amended, perhaps to ensure that some of the language is improved on a little. Apologies, convener, for that late intervention.
Not at all. My apologies for not calling you.
No problem. Thank you very much.
That ends stage 2 consideration of the bill. The bill will be reprinted as amended at stage 2 and it will be published tomorrow morning. The Parliament has not yet determined when stage 3 will be held. Members will be informed about that in due course, along with the deadlines for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.
I thank the cabinet secretary for taking part in our meeting. Cabinet secretary, you can leave the meeting by pressing the red telephone icon. I remind committee members that we remain in public for the next item.
24 February 2021