Hansard

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.

I move,

That the Parliament agrees to the general principles of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.