Local Government and Communities Committee

Meeting date: Wednesday, December 2, 2020

Official Report 598KB pdf

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European Charter of Local Self-Government (Incorporation) (Scotland) Bill: Stage 1

Agenda item 2 is an evidence session on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. I welcome Aileen Campbell, the Cabinet Secretary for Communities and Local Government; and, from the Scottish 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.

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.

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.

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.

Good.

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.

Thank you.

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 from the one that 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.

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.

Thank you.

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—