Local Government and Communities Committee

Meeting date: Wednesday, December 9, 2020

Official Report 607KB pdf

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

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, Scottish Parliament; Andrew Mylne, head of the non-Government bills unit; and Vanda Knowles, senior assistant clerk, Scottish Parliament. 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?

By

“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 6 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.