Hansard

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.