Hansard

I am happy to move the motion to enable the reconsideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Some members may be surprised to hear me speak to a second member’s bill, just days after seeing my Greyhound Racing (Offences) (Scotland) Bill through stage 1, so a little explanation is perhaps required, especially for members who were not present in session 5.

The Euro charter bill, as I call it, was introduced by Andy Wightman in May 2020, and it passed stage 3 on 23 March 2021, shortly before dissolution.

The bill incorporates the European Charter of Local Self-Government into Scots law. The fundamental purpose of incorporation is to strengthen the standing of local government in the democratic governance of Scotland through a range of measures relating to the Scottish ministers, the courts and this Parliament.

The bill was widely supported on a cross-party basis. I pay tribute to Andy Wightman for seeking to elevate the status of local government at a time when concerns about the centralisation of decision making in Edinburgh were rife and the Verity house agreement had yet to be signed.

In summary, the bill places a duty on the Scottish ministers to act compatibly with the charter and to promote self-government. The bill requires the courts to give effect to legislation in a way that is compatible with the charter. It also enables them to declare legislative provisions to be incompatible with the charter and require the Scottish ministers to take remedial action, as well as giving them powers in relation to decisions of Scottish ministers that breach their duties under the charter. Finally, the bill says that bills introduced in the Parliament need to be accompanied by a statement on their compatibility with the charter.

Following stage 3, the bill, together with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, was referred to the United Kingdom Supreme Court by the Attorney General and the Advocate General for Scotland under section 33(1) of the Scotland Act 1998. In October 2021, the Supreme Court found that the referred provisions were outside the Scottish Parliament’s legislative competence.

The two bills were drafted differently and, therefore, the issues before the court were slightly different, but the key question on the Euro charter bill was whether the bill conferred powers on the courts to interpret and scrutinise the legality of legislation passed by the sovereign UK Parliament and whether that modified the effect of section 28(7) of the Scotland Act 1998, which states that the conferral of power on the Scottish Parliament

“does not affect the power of the”

UK Parliament

“to make laws for Scotland.”

The first provision in question was section 4(1A) of the Euro charter bill. Section 4(1) provides that legislation referred to in section 4(1A) must be

“read and given effect in a way which is compatible with the Charter”.

The Supreme Court ruled that that would sometimes require the courts to modify the meaning and effect of acts of the UK Parliament, which would produce results that the UK Parliament did not intend. Accordingly, the court decided, for the same reasons as applied to the similar section 19(2)(a)(ii) of the UNCRC bill, that section 4(1A) of the Euro charter bill would be outside the legislative competence of this Parliament.

The second provision of this bill that was in question was section 5(1), which confers on the courts the power to declare that a provision of an act is incompatible with the charter. For the same reasons as applied to the similar section 21(5)(b)(ii) of the UNCRC bill, the court decided that section 5(1) of the Euro charter bill would affect the power of the UK Parliament to legislate for Scotland, because it would modify section 28(7) of the Scotland Act 1998, so it fell outside the legislative competence of the Scottish Parliament.

If members in the chamber are still with me, we will move to session 6. With Mr Wightman not being returned as an MSP, the responsibility fell to me, as the designated member now in charge of the bill, to decide whether to move towards a reconsideration stage.