Local Government and Communities Committee

Meeting date: Wednesday, November 18, 2020

Official Report 672KB pdf

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

Item 4 is our first day of evidence on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. I welcome the following, who are all attending remotely: Professor Chris Himsworth is emeritus professor of administrative law at the University of Edinburgh, Professor Richard Kerley is professor of management at Queen Margaret University, and Alison Payne is research director at Reform Scotland. Thank you all for being here today and for your written submissions.

For your information, I point out that we have allocated an hour or thereabouts for this session, and have a number of issues to discuss with you, so I ask you to keep your answers as succinct as possible.

Andy Wightman, who is the member in charge of the bill, is also a committee member. Under Parliament’s standing orders he will, in effect, take part in the evidence session as a non-committee member. In practice, that means that I will allow him to come in for questions to panellists only at the end, if time allows.

Before we start, I offer some brief technical information. There is a prearranged questioning order, so I will call members in turn to ask their questions for a block of up to nine minutes. It would help broadcasting staff if members could indicate to whom in the panel the questions are addressed. We might have a short amount of time for supplementary questions at the end.

As there are three people on the panel, witnesses should please indicate clearly when they wish to answer a question—for example, by raising your hand. Do not feel that you need to answer every question fully if your views are generally in line with points that have already been made. Please give broadcasting staff a second to operate the microphones before you speak. Thank you.

We now move on to questions; this question is for all the witnesses. To what extent and how does the bill support further devolution of local government, and what legislative barriers remain?

Thank you very much, convener, for this opportunity.

Reform Scotland sees the bill as being a good first step on a long-awaited journey towards greater decentralisation. It represents important recognition of the value of local government. We come at it from the point of view that this has to be just the first step—that we are recognising the value of local government, which will lead to decentralisation of additional powers and responsibilities and to a balancing of the relationship between Holyrood and local government.

Thank you. Professor Kerley?

I am not getting any—[Inaudible.]

Okay. I ask broadcasting colleagues to mute Professor Kerley, and I will bring in Professor Himsworth.

Thank you very much for the invitation to be here today. My answer to the question is that the bill forms part of the future, as I see it. It must be broadly accepted—it has been accepted for many years—that there is an issue in relation to the strength and capacity of local authorities in other European countries to do what they need to do. In Scotland, that has been a familiar weekly refrain, in my experience, since the end of the 60s into the 70s and the reorganisations of that time. The call has been sustained throughout the calls for devolution, of course, through the McIntosh commission and into the existence of the devolved Parliament and devolved Government in Scotland. There has been the constant theme about the adoption within the working constitution of means to support the autonomy of local authorities.

As to the bill’s particular response to the problem, although one has inevitably to take a somewhat pragmatic view, it seems to me that incorporation of the charter is currently at the top of the pile, for various reasons on which I could elaborate. It has the advantage of already being there; it contains obligations that are already binding on all the relevant bodies within the UK—certainly, within Scotland. The text has been available since 1985 and has been available within the UK since 1998. The bill is, to my mind, a good route forward. I am sure that there will be more to say about that, as we proceed.

I am sure that you are right. Does the bill leave any other legislative barriers in the way of further devolution to local government?

If I have interpreted the question correctly, I say that the bill opens the way, as is necessary, to more legislation going in the direction of further empowerment—I am hesitant to call it “liberation”—and of increases in the autonomy of local government. It stands to encourage all moves in that direction.

Thank you for that. I have another question. South Lanarkshire Council referred to challenging historical decisions on local government financing. Is the bill an opportunity to challenge past Scottish Government decisions on council funding? Do you think that that is what it should be for? I will stay with you, Professor Himsworth, as you are on screen.

I must pause a moment to say that the device that is adopted in the bill is to make the articles of the charter available in Scotland. They would become schedules to the act, were the bill to be passed. The consequence of that—we could expand on this—will be the obligation that will be placed on the Scottish Government to ensure that it acts compatibly with the principles that are laid down in the charter. The bill would go further by making failures to act compatibly challengeable, ultimately, in court.

Of course, decisions by Scottish ministers are challengeable in court on other grounds, including on human rights grounds and all the other familiar grounds for judicial review in the Scottish system. The bill would add to the grounds for challenge.

Connected to that are questions about how likely challenges are, whether challenges would be successful, whether challenges would be a good thing for the system overall and, in particular, whether they would cost undue amounts. Those are all questions that should rightly be taken into account. I see that they are, in the first instance, addressed very fully in the policy memorandum that accompanies the bill.

Those are thoughts that anyone would have around the creation of new obligations on public bodies, including on the Scottish ministers.

I will bring in Professor Kerley—I think that he is back—and then come back to Alison Payne. I am sorry. Professor Kerley does not sound any better.

I will ask Alison Payne the same question about South Lanarkshire Council input on being able to challenge historical funding decisions. Should that be what the bill is for? How would that work, where there are existing protocols? It is not just the Government that decides; it works alongside the Convention of Scottish Local Authorities, and so on.

10:30  

We hope that it would be more the start of a new relationship. I would think it would help to improve the relationship. There have definitely been issues in terms of how we manage things and how things have been in the past. There have been considerable disagreements over a range of matters, including finance, as the convener mentioned, in relation to South Lanarkshire.

I hope that the bill would help to create a new relationship and a new balance. If it ends up becoming clogged up in previous grievances, that will not lead to a new and better relationship that looks from the start at what powers can be devolved, and how we can move towards proper decentralisation. That is what we want the journey to be, rather than there being so much looking backwards.

I appreciate that.

We will move on. Professor Kerley says that he thinks that he can be heard now. Sarah Boyack is the next member to ask questions, so perhaps she could ask Professor Kerley one.

I thank the three witnesses for providing evidence in advance; it has been really helpful to us. I have some brief follow-up questions about those submissions, on which I hope that Richard Kerley might be able to come in.

In a section of your submission, you talk about dilemmas. How could the bill be improved? You talk about areas in which you think that improvements could be made. Could you set out how the bill could be strengthened to make it more effective?

Professor Kerley? No.

Convener, I was also going to ask Chris Himsworth that question, because he, too, mentioned the need to improve the bill in a number of ways. Perhaps he could comment on that while we wait for Professor Kerley to come back in.

Thank you for that question, which probably principally addresses the points that I made in my submission. Perhaps inappropriately, I talked about the notion of expanding the “scope” of the bill; by that, I meant the coverage of the bill.

I will explain where I was coming from when I made those observations. The job in hand is to give effect to the charter in broad terms. Some people have called it a charter of rights for local authorities. The charter speaks in positive terms about the things that should be achieved on behalf of local government, but it is largely silent on which bodies are the principal threats to local authorities’ autonomy and powers, and how those threats should be addressed. It is simply the manner of presentation of the charter.

It is pretty clear in all the documents associated with the charter that the principal threats—I do not mean this in a deeply unpleasant way—to local autonomy inevitably come from central Government, however that is defined. There is no doubt that, in very large measure, it is central Government, however that is defined, that must be the body that has the principal responsibilities in this area. In Scotland, inevitably, we think of the Scottish Government and the Scottish ministers.

What has to be borne in mind is that the charter is anxious to preserve the autonomy of local government, and therefore to repel any threats to that autonomy, wherever they come from. I will give an example from the charter. At a couple of points, it refers specifically to the requirement that local authorities should be consulted on matters that affect them. There is such an obligation in relation to their financial arrangements and their financing, as well as a more general obligation to consult on their functions and the discharge of those functions. It seems inevitable to me that not just the Scottish Government or the Scottish ministers but other bodies that are close to central Government in Scotland, or even bodies that are a little bit more distant but which nevertheless have dealings with local authorities, would be expected to respect those obligations under the charter. That is what the charter would seek.

For instance, there are, of course, health authorities in Scotland. There are bodies such as Police Scotland and the Scottish Police Authority, among many others. It is a perfectly familiar idea that, when they do things, they should consult local authorities as necessary. The charter would reinforce those obligations.

The approach that is taken in the bill—which I think is a perfectly legitimate one—is to focus almost exclusively on the obligations of the Scottish ministers. I think that that is right, because it is they who have the principal responsibilities in this field. There is no doubt about that. The whole structure of the bill is about imposing obligations on them and their response; to an extent, it is also about enforcing that response. I was simply inviting discussion of whether that coverage of the bill could be expanded to cover the obligations of other public authorities in Scotland. That is what the little questions in my submission were inviting discussion of.

I understand that one or two of the suggestions that I made—perhaps I was just flying kites a little—raise questions about the legislative competence of the Parliament. There may be a lot of very good prudential reasons for avoiding any difficulties in those areas, and I can well understand that the Parliament would wish to avoid inviting completely unnecessary—to my mind—challenge on competence grounds. I am not at all pressing for that.

On the other hand, if other public bodies that are completely within the competence of the Scottish Parliament were to be brought within the embrace of the bill, I think that that would not be a wholly bad thing, for the reasons that I have given. Of course, I can see that that would complicate the bill in some measure.

Sarah, Professor Kerley is on audio only. Do you want to try him?

Yes. I appreciate Professor Himsworth’s comments. My question was about how the bill could be improved. I get the sense from Professor Kerley and Alison Payne that they strongly support the bill; I would simply like to know what strengthening elements they think should be added to it.

I am hoping that people can hear me now.

Yes, we can hear you.

Thank you. If I break up, I will be happy to write down the response.

I had not previously considered the case that Professor Himsworth made in his written evidence and just now about the incorporation of other Government agencies and bodies within the bill. That makes a lot of sense to me, but my starting point was simply that the adoption of the charter would be a marvellous way of showing respect and the long-sought-for parity of esteem in terms of the elected position of local authorities throughout Scotland. I think that it would be a reminder to members of the Parliament and Government ministers that decisions that are made and legislation that is created must take account of those different spheres of elected democratic legitimacy.

Personally, I would not go for a much longer, more complex bill. If what Chris Himsworth said could be captured in a clause, that would make a great deal of sense to me, but I would not go for a long detailed addition to the bill, or the use of schedules, that would attempt to delineate every possible agency. His point about bodies such as Police Scotland, the health boards and Education Scotland—which has recently got itself into a tangle with regard to what different local authorities are doing—is a very powerful one.

Thank you.

The issue is whether the bill delivers what Chris Himsworth suggested that it needs to deliver. Alison Payne, do you think that it needs to be amended or is it strong enough as it is?

Reform Scotland would agree with what Professor Kerley said about the importance of the bill creating a platform for respect and parity of esteem. We would certainly agree with Professor Himsworth—indeed, Reform Scotland has previously talked about the issues to do with health boards or Police Scotland and the overlap with local government, and how local government has gradually been squeezed out of other areas.

Those are definitely important issues that need to be considered. However, I would be concerned about anything that would overly complicate the bill. The bill is a good starting platform, and our priority would be to get the bill through. It would then be a question of what comes next and how we build those new relationships.

Thank you.

I know that time is tight, so I will ask two questions in one and the panel can then respond. My first question is about the strengthening of the bill. Would it be strengthened by the appointment of an overseeing commissioner? Also, what are your views on potential sanctions? To what extent might they be needed and what form might they take?

That is a very interesting question, which was raised in your earlier consideration of the bill. I do not favour the appointment of a commissioner, because I think that it would impede the simple direct measure of access to the legal process. We might refer a matter to a commissioner, the person concerned would then say yes or no, and the local authorities or other agencies concerned might then say, “We wish to challenge that as we believe we have a right to do”. Direct access to the legal system is a more powerful mechanism.

I have very little enthusiasm for sanctions of any kind to be levied against public bodies, whether it be the Parliament or the Government. The nuclear form of sanctions is debarment from office, and we abandoned that a while ago, apart from in exceptional cases. What would we do—fine a public agency? If we did, we would simply be removing moneys from one agency to lodge, I presume, somewhere else.

So, neither commissioner nor sanction for me.

10:45  

We would largely agree with what Professor Kerley said. The importance is the symbolism of the legislation. We are trying to build a new relationship and, if it descends into sanctions and tit for tat, that is not where we want to go. It is about building a new respect agenda.

I think that I follow those remarks. As to a commissioner, I think that the offering of complaints systems—which is what that might become, in a way—across public authorities in Scotland has become something of an industry in recent years. Perhaps at the centre of this is the Scottish Public Services Ombudsman as a channel for entertaining complaints from different sources across the public services in Scotland. However, first and foremost, I would say that this is not appropriate business for the ombudsman, even though a general stance has been taken in recent years that, rather than further clutter the administrative environment, one should use the known resources available. I do not think that this is ombudsman work. I could elaborate on that, but that is my view.

Otherwise, I think that the directness of the imposition of the requirements and the compatibility obligations that the bill places on the principal target, the Scottish ministers, is the best thing.

As to sanctions, I am not quite sure what that means. Yes, of course, it could ultimately mean that steps taken by the Scottish ministers are incompatible with the charter and that something would need to be done about that. The courts could make what the bill calls a “declaration of incompatibility”, which would impose sanctions or obligations on ministers. It would not do so in a personal sense; they would simply, as ever, be institutional obligations on ministers.

I failed to mention historical challenges earlier. It is most unlikely that deeply historical challenges would ever be competent under the bill for various reasons. Access to the courts and access to judicial review to enforce the bill would be most unlikely to penetrate deep into the history of financial allocations but would have to be triggered pretty promptly if there were a complaint.

I have one question for each of the witnesses. Each of the questions is about whether the bill will have the effect that those who support it would like it to have.

Professor Himsworth made an interesting point about whether other bodies should be captured by this as well, for example if a city deal is signed by the UK Government, the Scottish Government and a local authority, and the local authority feels very aggrieved that the UK Government, for example, has failed to take into account the interests and the views of that local authority in which projects it will support. That is not a far-fetched example. Where would the bill help? The Scottish Government would be bound by the same agreement. Would it be the case that the only action that can be taken by an aggrieved local authority would be against the Scottish Government, even though in its view the fault would lie with the UK Government?

Those are, of course, difficult areas. My whole expanded talk about embracing, for instance, obligations on UK ministers raises the questions of competence that I raised earlier, and whether they were covered at all by the bill would depend on the bill’s terms. At the moment, they are plainly not and, therefore, the bill would make no direct contribution in that area.

In any event, it sounds to me as though the sorts of complaints that might be raised under city deal arrangements would be better dealt with under other forms. The only way in which the charter could be used to add anything directly to that would be by invoking its requirements that authorities are adequately funded and, for instance, that there are systems of equalisation and so on in place within the financing system. I suppose that there is an outside chance, but I would rate it no more highly than that, that notions of equalisation might enter into that debate.

I am not sure whether I have wholly answered the question, but I am happy to come back.

I think that it is about the legal jeopardy of the aggrieved action being undertaken by one public body but the only people that local authorities could take action against would be the public body that is bound in the law.

Leaving that to one side, I put a couple of questions in the chat bar to Professor Kerley when I was not sure whether he was going to get the audio. Obviously, Professor Kerley has answered the first of those by saying that he would not support a commissioner, and I would certainly agree with that.

My second question, for the benefit of the public record, is about the comment in Professor Kerley’s evidence—I am paraphrasing, so he should feel free to contradict me—that some of the language in the charter allows the Government to escape, by reference to national economic frameworks or other such phrases, from any real accountability. If that is his view, how does this become anything more than just a dead letter?

I have answered the first question orally, as you have just acknowledged. In relation to the second one, the point that I was hoping to make is that the systems of local government and, indeed, the democratic accountability, as we would understand it in the various parts of the UK, are very varied, given the number of countries that have signed up to the charter. The charter had to accommodate that in many different ways.

As I read it and as we see from experience in other countries, there is nothing to prevent a nation-state Government from taking action to change local governments or to vary the amount of responsibility or, indeed, the resources that are transferred through various financial schemes to different local governments, as long as they are done properly and legally under the legal framework in that particular country. I give the example of the reduction of local authorities in Sweden over a number of decades. Nothing freezes in aspic the current arrangements that exist.

I would not say that the charter is a dead letter. The point that I would want to make is that a course of action has to be justified, it has to be legislated for within the terms of the law, and preferably it has to be discussed and agreed with the variety of interests concerned with both local self-government and the totality of government and decision making in Scotland.

My scepticism about how effective it might be is probably informed by the last time I studied these things in the 1980s and the various challenges that there were between local government and the UK Government at that time about powers and changes.

My last question is for Alison Payne. If there is scepticism among people in local government about the impact that the charter would have, would it not be the case that other things—for example, the proposed full-time, properly remunerated posts for councillors—would be far more effective in enhancing parity of esteem and the effectiveness of local government to withstand the predations of national Government?

I do not think that it is one or the other. We would undoubtedly not say that the bill on its own is enough. It has to be a first step. It is an important signal. We feel that, over the course of devolution, powers have been centralised at Holyrood and we need more devolution. We need to look at local government and we need to value it more highly. There are a number of issues that you have highlighted, such as having full-time, remunerated councillors. How we strengthen local government certainly goes beyond just the bill. We would agree that the bill on its own is not enough. In our evidence, we said that this has to be only the first step.

There are a lot of things that we would like the Scottish Government to do, and Reform Scotland has for a long time called for looking at local taxation and other areas of power and how we give local government a far greater say in health and policing. Those issues all still need to be dealt with, but we still welcome the bill as an important first step.

That leads to my question, as I was going to ask Alison Payne about centralisation and how she saw the next steps. I will drill down a little bit further into that.

Alison, you talked about non-domestic rates and tax in your submission and you spoke about that just now. Are the reforms that you are looking for possible without the bill? How does the bill act as a springboard for local government to go on and have more parity of esteem, as I think Professor Kerley said? Professor Himsworth said that it is a stepping stone on a journey. Where does it fit in and would that journey take place without this bill?

I think that those reforms could certainly take place without the bill. At Reform Scotland, we have been calling for them pretty much since our creation back in 2008. However, the bill is certainly important as a stepping stone to reset the relationship between central and local government. The fact that it calls on the Scottish Government to report on its relationship, and how it has taken local government into account, is an important reminder of the importance of that relationship and the fact that local government should not just be put to the side. I hope that it will help to be a springboard.

There are issues that we need to consider, and the current pandemic has reminded us of that. We have the different levels. The current situation, both in health and in economic output, has been affected differently throughout the country, and we need our local authorities to be able to respond to that. The current economic climate also means that, together with this bill, hopefully we can begin to have a reset of that relationship between local and central Government in Scotland. The next stage that we would like to see is reviewing local government finance, for example, and properly looking to start decentralising powers.

Are there any specific powers, apart from non-domestic rates and tax powers, which you spoke about, that you would also like to see come to local government?

I apologise, convener, as I am going to get a little parochial here. What is your opinion on the size of some local authorities, such as mine, Highland Council? How can it be close to the people when it covers a landmass of more than half of Scotland?

Undoubtedly, there is a huge variance across the country, from Clackmannanshire to the Highlands, covering hugely different geographies and population levels. There are definitely a lot of different issues that can be considered and we are beginning to see that small local authorities are choosing to work together. We want to see things changing from the bottom up.

In areas where there is huge geography, the question is how we can bring decisions beyond the local government area. Whether it involves area committees or strengthened community councils, the question is how we can bring decisions closer to the people so that decision making does not stop at local government but goes beyond that. We need to have a full national conversation on how we re-engage people in local government.

11:00  

On your question about powers, we specifically mentioned in our evidence tax powers over council tax and business rates, but we would also look at how we can reinject a greater level of localism into policing. We now have just the one police body covering Scotland. How do we improve local government representation there? We have said before that there are things that we can do with health boards. We can at least pilot initiatives. Where health boards and local government cover the same areas, we can look at doing things and bringing things closer together.

There are a lot of things that we should be looking at to improve the structure of local government and make it more accountable to individuals and better engage the communities they serve. There can be a disconnect as to where responsibility lies and who is the person who should be accountable for decision making. Whose fault it is or who is to be congratulated on a policy is getting a wee bit lost. We need to have a broad conversation about local government in Scotland.

I endorse those sentiments. I have always seen the charter as making a principal contribution to the environment within which these issues inevitably arise, as they always have, between local authorities as represented by COSLA and central Government. It contributes to the debate by providing the standards. The charter embarks on a standard-setting exercise according to which the debate should be conducted. I suppose that it is a cliché nowadays to say that individual pieces of legislation or policy are never magic bullets. Nobody will claim that the incorporation of this charter is a magic bullet or the solution to all problems to do with local government in Scotland—of course not.

Potentially, the contribution that the charter makes to framing that environment goes well beyond being merely symbolic and visible only as utter generalities. For instance, to re-engage with the financial debate, article 9(3) of the charter insists on local government having available a source of revenue over which it has the power to determine the rate. The present arrangements are pretty precarious when measured against that test. Business rates have long since been taken out of the hands of the local authorities. As long as we have measures taken to suppress the freedom of local authorities to make council tax decisions at will, the power to determine the rate is in effect removed from them. Therefore, that shows that the charter seeks to provide a framework in which that familiar debate will continue to be conducted.

Gail Ross has raised some very interesting questions, some of which have, to my mind, long been quite hard to reconcile. Either you have one local authority for a very large geographical area that is sparsely populated—if you think that Highland is big, you should see some of the local authority areas in Australia, Canada and parts of the United States—or you have a number of small local authorities with very few people. The reality of that is that, in any collective discussion within the policy community in the broadest sense, Glasgow, Edinburgh, Aberdeen and Fife completely outweigh Nairn or wherever it might be.

There is a hard-to-reconcile balance in some of that, but I would hope that the committee will focus on this particular piece of legislation at the moment. There are many other things that we could do and I might suggest we do in relation to local government, but I think that the point that is being made by Alison Payne and Chris Himsworth is that we are helping to create more of a climate of a working relationship between central and local government if this bill is approved by the Parliament. I do not think that that stops us arguing for alternative courses of action on, for example, non-domestic rates and the forms of local taxation that we have for citizens and—I think that it is inescapable in some shape or form—for residential property, but I would like you to focus on this bill rather than on what we might otherwise do in a far larger bill, which arguably would be the province of the Government rather than a private member, with respect to Andy Wightman, to introduce. This strikes me as a member’s bill. It focuses on a particular aspect. I am moving my hands, convener, to show the wider context, and I think that that is in the spirit of such legislation.

Thank you. Gail, do you have a very brief question to ask?

I have a very small question for Professor Himsworth. On the back of the conversation about taxation, council tax and councils being given the freedom to set their own rates, how would the Scottish Government’s council tax freeze fit into that, if councils that want to set their own rates are then told that they have to adhere to a national policy?

That is one aspect of the constraints on local authorities that are operative now. The charter looks beyond issues such as the simple terms of national legislation when judging whether the standards have been met. In other words, it is far from sufficient simply to say that a particular section of the Local Government Finance Act 1992 authorises local authorities to decide freely on the level of the council tax rate. What is being looked for is the practical implementation of the charter. That has always been in mind when the other, international means for the scrutiny of the charter and its implementation has been undertaken from Strasbourg by the Council of Europe through the Congress of Local and Regional Authorities. It is looking all the time not merely at statutory frameworks for freedom but at the practical operation.

My observation was simply that the practical conclusion of arrangements, at the minute, leaves individual authorities without much wriggle room at all in the setting of their levels of funding. They have other charges available to them, of course, with which they may have greater freedom, but not much is there for the principal sources of revenue. It seems to me that the charter has always been there. This charter, even if not incorporated, has been available to be invoked by local authorities and COSLA and they have done so over the years. Incorporation would strengthen the ability for recourse to that principle in the charter, which would contribute to the framing of the debate about funding levels.

I have two points in relation to that specific question. The first echoes the point that I was trying to make earlier, which is that, if you look at the full list of signatories to the charter and those aspects of the charter to which they have committed themselves, you will find that there is considerable variation. Some of the signatories in the list are fairly interesting places, including Armenia, Azerbaijan and Andorra—you just start at A and find yourself looking at places very different from Scotland or the rest of the UK or France or wherever.

The second point is that I have always argued that the standstill on council tax—incidentally, I did not agree with it in many ways—was not technically a freeze. Rather, local authorities consented—unwisely in my view—to financial incentives to keep the council tax at a standstill level. That is why the amount of increase was fairly consistent with previous legal judgments. If local authorities collectively agree to something with the Government, it is questionable whether it can be said to have been imposed. In its latter stages, it became unpopular with local authorities and imposed, but I do not think it was ever initially a complete imposition. It was an agreement—historically, the word “concordat” does not have a lot to recommend it, but there you go. I will end there, convener.

Good morning, everyone. I have one short question, as I know that we are tight on time. What impact would the bill have on human rights and what may be needed to ensure positive outcomes?

The human rights side of things is very short. We do not see any problems with that. It is not something that we have looked into, so we have nothing to add on that bit.

I do not see that the bill has any negative impact on human rights at all. If we have greater clarity of relationships between different spheres of governance in the country, we enhance human rights, because we enable people to be clear about what powers and authority and responsibilities different bodies have. Then they have a greater sense of whether that is impacting on them lawfully and properly as opposed to just negatively or positively.

I agree with that. I referred a little loosely to this charter as a charter of rights for local authorities. I would see it in that respect as entirely complementary to the other rights instruments that are available internationally. There is an overlapping element if one were seeking one, and that is that you do not have to go far into the European convention on human rights to get to a right to vote. The notion that local authorities are, of course, locally elected authorities and that they secure their mandate, their legitimacy and their difference from all the other, appointed bodies through the right to vote is a parallel between the two systems, which I think is worth noting.

That allows Andy Wightman to come in with a question.

I have no questions, convener.

Thank you very much. Today we have seen a first. On that note, thank you very much for taking part. That completes the end of our questions for the first panel. Members of the panel can leave the meeting by pressing the red telephone icon. Thank you all very much for your participation this morning. I suspend the meeting for a panel changeover.

11:14 Meeting suspended.  

11:16 On resuming—  

I am pleased to welcome our second panel of witnesses, who are attending remotely. Andrew Fraser is head of democratic services at North Ayrshire Council, and is representing the Society of Local Authority Lawyers and Administrators; Councillor Alison Evison is president of the Convention of Scottish Local Authorities; and Councillor Malcolm Bell is the convener of Shetland Islands Council. Thank you for attending today and for your written evidence.

We have allocated about an hour for this session. You may have heard my remarks to the previous panel: if you agree with what another panellist has already said, please feel free simply to confirm that rather than give a full answer.

Members will ask their questions in a prearranged order, with any supplementaries at the end if time allows. It helps broadcasting if members could indicate which panellists their questions are addressed to. Please give broadcasting staff a second to operate your microphones before you speak.

Councillor Evison, I believe that you have some brief opening remarks.

Thank you, convener.

Almost three decades ago, the UK ratified the European Charter of Local Self-Government, which is an international treaty of the Council of Europe. COSLA has been urging the UK Government and, since devolution, the Scottish Government and Scottish Parliament, to put the charter into domestic legislation so that it enters into force. Scotland, Wales and England are the only countries in Europe, other than Hungary, that do not recognise the right to local self-government in their domestic legal frameworks. That is what incorporating the charter is all about.

It is a rare oddity that Scotland, with more than 600 years of uninterrupted local government history, has not yet held itself to the same standard as other countries in Europe. Furthermore, at time when the UK has left the European Union, passing the bill will ensure that Scotland keeps pace with the standards of the other European organisation, the Council of Europe, of which the UK was one of the founders.

Incorporating the charter would bring about a new level of partnership working on shared issues, with a positive impact on outcomes—as with legislation on equalities, with the law being a legal backstop for Governments. Next year, the Congress of Local and Regional Authorities of the Council of Europe, which is responsible for monitoring the application of the charter and at which Councillor Heather Brannan-McVey and Angela Constance MSP represent Scotland, will come to Scotland to examine the state of our local democracy. What better sign than to welcome the congress with the bill already on the statute book?

I will begin by asking the panel the same questions that I asked the first panel. To what extent and in what way does the bill support the process of further devolution to local government, and what legislative barriers remain? Councillor Evison, do you want to kick off on that?

Yes, thank you. The bill is about a really important culture change. It is about ensuring that the relationship between the Scottish Government and local government is on a firm partnership footing and empowering local government to have that role. At the moment, when the Scottish Government wants to introduce a new piece of legislation, an awful lot of thinking goes on before local government is consulted. In practice, the bill would mean that local government would be involved in decision making, with better outcomes and better results for the communities that we all serve.

This is an important stage in moving us on to the important next step of devolution—the next step of democracy in Scotland—which was first established with the Scottish Parliament. It is about making sure that our communities are more empowered to take part in decision making and that we take democracy right down to the lowest level in our communities and encourage people to feel empowered and get involved. By encouraging more participative democracy, which the bill would do, we would enhance work in our local communities and we would all get the better outcomes that we seek.

There is a slight danger that we exaggerate what the bill would actually do. It is important to recognise that the charter came into effect in 1998. I understand that the Government has committed to comply with it, so in theory the duties in the bill should be being complied with already.

I agree with the submissions from Alison Evison and Alison Payne that this is very much about culture change and building on the new relationship. It feeds into the overall debate about the sort of country that we want Scotland to be: do we want it to be a rights-based society that takes its international obligations seriously and where all organisations work in partnership towards a common aim? That is unfinished business, and the bill is part of the starting point of building more consensus.

The corollary of that—in some ways, it is the opposite—is that, if Parliament does not support the bill, it will send out a bad message about the commitment to subsidiarity, the forthcoming review of local governance and the degree to which there is a commitment to depart from the command-and-control, centralising model. I suppose that being bedfellows with Hungary is not a good place to be, given that the charter will be subject to review next year.

The bill is a starting point. It is one of the important points of the journey down the road, and it is a good first win in the local governance review. Many of the issues that have been raised by the committee are wider issues about the local governance review. Those issues are extremely important, but I do not think that the charter will answer them at this stage.

Thank you, convener, for the opportunity to appear before the committee today.

I echo what the previous speakers have said. In itself, the bill will not be transformative, but it is a very important first step along the road and a change in the direction of travel that we have been on for decades now. That is not a party-political point in any sense.

My question is: why would we not adopt the bill? Scotland likes to think of itself as a very European nation, which is an aspiration that I agree with. However, in terms of its centralisation habits, Scotland is a very British nation. I think that the adoption of the bill would go a long way towards changing that perception.

Can I ask you to clarify that? Are you saying that the bill would go a long way towards changing the perception of Scotland as being a British nation, or the perception that we are a European nation?

No. I am saying that we like to think of ourselves as a European nation—rightly so; I agree with that aspiration. However, given the centralisation habits of Scotland as a nation—of taking things into the centre and being very top down—it acts in a very British way.

Thank you very much for that. I was looking for that clarification—that was all.

I have a question about where the bill could clear up some of the ambiguity in charter articles. Does Andrew Fraser want to come in on that?

Inevitably, the charter articles are set out in broad terms. The bill is about building the culture and ensuring that people have regard to the charter as a starting point.

A good example might be the charter obligation that relates to ring fencing, which is in article 9(7). It says:

“As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects.”

That is not a bar to ring fencing; it just means that the “as far as possible” test has to be addressed and considered. That is a good example. It is a bit like what happens with equalities: it asks for the charter to be considered before consultation. I hope that that helps.

Yes—that is fair. Does Councillor Evison want to come in?

I echo Andrew Fraser’s comments. It is about making sure that local government is consulted and that the interests of local government are considered. It is not about saying either that local government shall do this or that local government shall not do that; it is about consultation and thinking together. Local government delivers 61 per cent of the national performance framework, so you can see the importance of having that consultation, involvement and participation. The charter makes sure that we can have that discussion and that local government is considered before decisions are made—that is the important thing. It is about refocusing the relationship between central and local government for better outcomes for our communities. The bottom line is that we all serve the same communities.

That is definitely true.

According to Councillor Bell and Andrew Fraser, it appears that the purpose of the bill is really to send out the message that we have already been doing for a number of decades the stuff that we are being asked to do under the bill. Is that the case? Is the bill really just about sending out a message, or does it have real, practical application?

I do not think that I said, and I certainly did not mean to say, that we have been doing things right for decades; I may have worded it wrongly. Certainly, for decades the power and the influence of local government have been eroded and chipped away. As I said, that is not a party-political statement. It has happened under Governments of all hues in Edinburgh and Westminster. For example, over the past four or five decades, we have lost power over public health, water and sewerage and police and fire services, and education is now largely directed from Edinburgh. It looks as if we could well lose—[Inaudible.]

How would the bill bring any of those services back into local government control?

It would not do that in itself, but it would send out a signal that the Government takes its relationship with local government seriously, which we do not feel that it does at the moment. We feel undervalued, underfunded and very much under the authority of Holyrood, as opposed to being a partner.

Things started off well in 2007 when we had the concordat. We had a real feeling that we were entering a partnership, and for a number of years that worked well. That probably links back to what previous speakers have said about the council tax freeze, for example, which was readily accepted because at the time we had what felt like a real partnership. However, over the years, that feeling has eroded—and the Covid situation has accelerated that.

This discussion could go on, but I have run out of time. I hope that somebody else will pick up on some of those issues.

11:30  

I thank the witnesses for submitting written evidence in advance of our committee meeting.

A member of the previous panel suggested that the bill will reset the relationship between the Scottish Government and local government 20 years on from the establishment of the Parliament. What are the witnesses’ views on whether the bill will have a transformative effect on partnership working between the Scottish Government and local government? Is all the written evidence that makes that assumption correct? I ask Alison Evison to kick off first.

I think that the bill has the potential to be transformative, in the sense that it is the first step on a transformative journey. It makes it possible to rephrase the relationship between the Scottish Government and local government. It will give a sense of confidence that local government’s voice will be heard. That will encourage local democracy by encouraging people to come forward and participate in that democracy.

As a result of that, I think that we will see a more diverse range of people wanting to get involved in local government and to serve their communities. That will be of huge benefit for us as a system of government across the two spheres of government in Scotland. I think that the bill has huge potential to do something that is great and to be the first step on the journey.

To pick up on a point that has just been made, this is not about what the current Scottish Government might do or not do, or about what its wishes or aspirations might be. It is about enshrining something in law so that it is always there. It is not about particular policies that might come in. It is about making sure that the relationship is set up and is always there as something that we can hold on to; it is about making sure that we know that we can have those conversations and have that security and confidence. In that way, people will feel more empowered to get involved and we will have better outcomes for all our communities.

Thank you.

Councillor Bell, you think that we need that reset of relationships. Does the bill do that for us?

I agree very much with what Councillor Evison said and do not have much more to add. I do not think that, if you pass the bill, the world will change overnight. The bill will send a signal, and local government and national Government will have to work on the relationship. I think that the bill will benefit both parties and the communities that we serve.

What I really want to see is an improvement in the esteem of local government. At the last election in 2017, three out of seven seats in Shetland were effectively uncontested. That is the first time that that has happened, and it is a real concern. If that trend continues, we may struggle to fill seats, never mind have uncontested seats. There may be a lot of reasons for that, but I am sure that one reason is that people do not see the value of local government. I think the passing of the bill would send out a very clear signal that local government is valued as a partner in the overall governance of Scotland.

Andrew Fraser, people quite often ask what the point is, given that the Government sets the finance. Do you think that the bill will be a game changer?

Yes, I think that the bill will be transformative for a couple of reasons. As I have said, it will not impose new duties. However, I think that, in both the local government community and central Government, awareness of the charter duties is very poor. Once the bill comes through, awareness of the duties will mean that they will be treated seriously and will become a reality, which can only help.

Similarly, if the Parliament does not agree to pass the bill, there is a danger that will be equally transformative, as it will send out a message that there is a lack of commitment to the charter. If the charter is something that Governments should have been implementing anyway, it should be no big deal to implement the bill. As I say, it fits very well with the rights-based framework.

Alison Evison, are there changes that COSLA feels should be made to the bill to make it as effective as it needs to be? I refer to your thoughts about how it could be amended and about the wording in the charter. Are there any changes that you would like to make to the bill as introduced?

No. COSLA and local government are happy with the bill as it is. It is really important that we do not complicate matters. The charter was written and ratified three decades ago, and ratification was accepted at that point. It is important that we move on with this journey. The charter is there; let us enshrine it in our law, move forward with it and be able to look positively at local democracy across Scotland. The bill is fine as it is.

Good morning, everyone. South Lanarkshire Council refers to challenging historical decisions around local government funding. Might the bill be seen as an opportunity to challenge past Scottish Governments on decisions on council funding? That is probably one for Alison Evison first.

As someone on the previous panel said, the bill is about recalibrating the relationship between the Scottish Government and local government. It is about moving forward. We are looking at something ahead of us, not something behind us, and I think that that is the important point about the bill.

Things could have been challenged in the past, such as through judicial review and so on, but this is about being forward looking—it is about the future. The onus is on all of us to take responsibility for the relationship and to move forward together in partnership to do something that enhances the role of local government and, therefore, enhances our communities. We are not looking back; we are looking forward.

This is probably not the answer that you would expect from a local government lawyer, but I think that the chance of a successful court challenge is minimal. SOLAR said in its written submission that that is very much the “nuclear option” that nobody wants to take. The chances of success would be relatively poor as long as the Scottish Government could show that it had due regard to the principles in the charter in weighing up the options. Nobody wants to get to that place, so I think the amount of legal action would be minimal.

Thanks very much for that answer. I like Councillor Evison’s point that this is about moving forward.

The other thing that I want to ask about is what you see as being the role of the Scottish Parliament and the Local Government and Communities Committee. Would it be just to scrutinise five-yearly reports under section 3, or could it go further, as some submissions suggest? With the bill enacted, is there a possibility that the Local Government and Communities Committee would become less central in examining the role of local government in Scotland, with that role passing more to the courts?

No, not at all. The courts would have a minimal role. They would be there as an option, but it would be very much a nuclear option. It is an option that we have already, in any event, and it is used sometimes but very rarely. I do not see that changing. As I and previous witnesses have commented, this is very much about working in partnership for the benefit of our communities.

I agree entirely. The most that the courts would do in a particular case is probably provide a bit of clarity around the meaning of one of the charter obligations. I do not see them in any way usurping or taking away from the role of the committee or the working relationship between COSLA and the Government, which I think will improve.

If you are trying to get us to pass the bill, it is not a good selling point to suggest that we do away with the Local Government and Communities Committee.

What a time to come in.

A lot has been made of the relationship between central Government and local government. In local government, the issue probably goes further, to the relationship between officers and elected members and then to the relationship with community councils and communities. It has been mentioned that the bill will go some way towards improving those relationships, given the consultation aspect for policy and legislation. Could the panel explain a bit more about how that consultation will look in practice? We all want to be able to consult our constituents as much as we can, and we know that the Scottish Government has in place statutory consultation periods for its legislation. Alison Evison, how do you see that working with COSLA? Would COSLA take a lead on that, or would the consultation be with local authorities themselves—with elected members or with chief executives or officers? How do you see that working?

This is about the relationship between the Scottish Government and local government, for the most part. It is about establishing that relationship and supporting the engagement with parliamentary committees and the different bodies that we liaise and discuss matters with before policy is developed, to make it the most appropriate for our communities. That is what the charter is about. The other issues are additional to the charter and are not part of the bill at all. They are things that would happen in addition to that, and I do not think we need to get diverted by something that may be a side issue.

The really important thing is that, by enhancing the role of local government and by creating confidence in the importance of local government as the voice of communities the length and breadth of Scotland, we would be encouraging more people to come forward to stand and represent their local communities. We would have more of a voice from women, ethnic minorities, disabled people and those with other protected characteristics, because they would have the confidence to come forward in a participatory democracy locally to be that voice.

The charter is not about how we would consult at a local level; it is about the relationship between the Scottish Government and local government. It is about creating confidence in the role of local government, enhancing its role and showing the value and esteem in which local government is held. Doing that would encourage people to step up and be part of it. When we have those voices at the table in local government, we have a stronger democracy and we have on-going consultation happening without needing something to be set up by which to do it.

Putting a European charter into legislation is not going to encourage more women into local politics. Improving the terms and conditions, putting up the wages, having consideration for childcare and, as you say, improving the confidence of women to stand for elected positions will help women to stand for election. Maybe you can help me out here, because I do not see how we can get the message across that a European charter will encourage gender balance in local authorities.

11:45  

There are lots of reasons why people do not get involved in politics. The fact that one method of adjusting the balance does not cover everything does not mean we should not do it. The fact that one thing does not do everything does not mean we should not do anything. It is an important stage.

One reason why people do not get involved—as well as all the other reasons you have pointed out—is that they feel that their voice is not heard. They feel that they are not able to make a difference, that local government is not held in the esteem it should be held in and that decisions are being made somewhere else. As Andrew Fraser has said, the onus needs to be on asking why people do not come forward and what that shows about the esteem and voice of local government. By enshrining the charter in legislation, we are saying that local government does have a voice.

It is important to have consultation between local government and the Scottish Government. We acknowledge that and accept the journey that we are on, moving forward with democracy in Scotland, and this is part of that picture. Yes, it does not solve every problem—I would be the first to agree with that—but it does go some of the way, and we should take the steps that we can take. The bill is an easy way of showing the esteem in which local government is held.

I suppose that I am looking for the practical differences that it will make rather than just sending a signal that we hold local government in high esteem—which we should be doing already, as has been said before. It should not take a new piece of legislation to do that. Does either of our other witnesses have an opinion on that?

I very much agree with what Alison Evison said. Gail Ross is correct: we continually hear about the esteem in which local government is held at Holyrood. Unfortunately, in my experience that does not play out in the day to day. It does not feel that way. In comparison to other European local government models, our model does not feel local and it certainly does not feel like government. I think Andrew Fraser made the point about the signal that would be sent out if we did not adopt the charter. It would not fix all the issues that Gail Ross has raised—for example, around gender equality—but it would go some way.

We need to engender enthusiasm for local government. People need to see that, by standing for election, being elected and getting involved, they can make a real difference. As we move towards to elections in 18 months’ time, people say to me, “Give me a reason for standing,” but it is sometimes difficult, because, to be perfectly honest, I struggle to say what areas I have real influence over. The bill is a step along the way. It is about turning around decades of erosion of the influence and power that local government has.

Gail Ross makes an important point: ultimately, what difference will the bill make to overall community empowerment? That is a very serious issue for the local governance review, and the bill is just one of the tools in the box. It fits within the overall framework of subsidiarity whereby power should go down to the lowest level. Whether you think of government in spheres or tiers, local government is closer to the people and is better able to achieve outcomes that are targeted at individual communities. From that point of view, if you pass a bill that supports charter obligations that empower local government, that should, in turn, feed down to local government being able to support its communities and achieve solutions that are targeted at the needs of individual communities.

I agree totally that there is a much wider issue, which is very much tied up with the local governance review, about how we can get to the point where community organisations, communities, community planning partners, councils and the Scottish Government identify shared priorities and everyone works towards achieving them. That is a much wider issue, but I think that the bill helps with that.

The majority of this panel have been councillors, and I am a bit surprised to hear a councillor say that he could not explain to people why they should be councillors. I doubt that there is an ex-councillor on the committee who could not say what they managed to do as a councillor or how being a councillor was beneficial to their communities and themselves. I accept that there are issues and that local authorities might have issues with the Government, but I do not think that we should be painting the picture that everything is doom and gloom and that being a councillor is such a terrible job that we do not know why anybody would want to take it. That is the message that is coming across—certainly to me, anyway.

Keith Brown, follow that, please.

I agree with you, convener, but also with Councillor Bell, for various reasons.

I have two questions. One of the witnesses said that we do not want to be bedfellows with Hungary by not putting the charter into law. However, we are currently bedfellows with Wales and England. Councillor Evison mentioned that COSLA had also previously tried to convince the UK Government to put the charter into law and had not succeeded. I assume that that was in concert with the Local Government Association. Is she aware of the reasons that were given by England and Wales for not putting the charter into law as we are now being asked to do?

Those negotiations with the UK Government obviously took place in the days before the Scottish Parliament. The work with COSLA over the past decades has been done by the Scottish Parliament, because this is a law that we can enact in Scotland. That is where our focus is, and it is what we need to do.

Why has it not been enacted? I do not know. The onus is on the Government to say why it has not wanted to enact it, because it fits in with the human rights portfolio of work that the Scottish Government is currently doing. It is very much compatible with that work. It also fits in with our international obligations. We have ratified an international treaty, and enacting the law is the next stage. It is important to fulfil our international obligations if we want to have the place on the international stage that we feel we should have. Also, it is the right thing to do for democracy.

I live here, in a royal burgh. Royal burghs have been part of the system of local government in Scotland for centuries, and this is the next stage on a journey that has been going on for all that time. It is important that we seek that perspective and ask what we need to do now to move our democracy on, to take things forward to the next step, to empower our communities and to deliver as we wish to in a democratic country.

That was not my question. Obviously, there is a commonality between England, Wales and Scotland under UK law. If you cannot say why England and Wales would not do it, is there no co-ordination across the UK between COSLA and the Local Government Association on these issues?

We are working on the issue in Scotland. We are working with our partners in the Scottish Parliament and the Scottish Government to get the charter ratified in Scotland because this is where we can make a difference. It has not been on the agenda with the LGA—we have been talking with the LGA about other issues: Covid, Brexit and EU transition issues. Our current concern is in Scotland because this is where we can make a difference. This is where Andy Wightman has introduced the bill, and it is where we have a chance to put it on the statute book and make a difference.

We are taking the lead on this. I do not think that we want to go down the line that we should not do it because no one else in the UK has done it. It is important that we do what is right here. We have a bill in front of us, and we have a chance to enshrine the charter in law for all the right reasons—for local democracy and the journey that we are on in Scotland.

Can I try with Councillor Bell? His point was about centralisation over the decades. In my view, centralisation has tended to follow times of economic crisis. Prior to the 1980s, councils were running energy companies, airports and all sorts of things, but then we had the economic downturn of the 1980s. I remember, as a council leader in the early 2000s, trying to convince the then Scottish Government that the level of funding that was given to local authorities was an indicator of parity of esteem, and it was following the level of funding that was provided by the Scottish Executive to local authorities. You mentioned 2007. Of course, after that, we had 2008 and the crash. If it is the case—I think it is, but I am not putting words in your mouth—that centralisation tends to be a factor of Governments trying to respond to economic crises or pressures, how would the adoption of the charter help to provide a safeguard? The point has been made that, where the charter has already been adopted, Governments can use phrases like “within national economic policy” to not do certain things. How would the charter help when centralisation was being accelerated by economic crisis?

That is a really interesting point. Local government’s power has been eroded over a number of decades but there have been key stages, and I think that is probably a good point. We have seen it happen again with Covid. The difficulty is that we are not resetting once we come out of such crises. We should not be using the crises as an excuse to suck powers into the centre and keep them there.

If I may, I will touch on the points that the convener made. It is becoming more difficult for me, as a councillor, to explain to people in simple terms the differences we can make, because 60 per cent of our revenue budget goes on delivering national outcomes. In that sense, we are becoming very much like health boards.

In Scotland, in comparison with most of the other countries in Europe, we have a very weak system of local government. I believe that the bill would act as a check and as a reminder to ministers that local government is here, that it is important and that it is a key partner. We want to be a key partner. We want to work together to deliver excellent services for our communities and for people across Scotland.

I do not want to take any of Keith Brown’s time, so I will not respond to that.

With apologies to Andrew Fraser, that is enough for me, convener. I am happy to move on, given the time.

Okay. Thank you very much.

I have a question about the financial memorandum. How accurate are the projected costs of the bill?

That depends very much on the extent to which the principles of the charter are already embedded in the Scottish Government. In other words, is there a need for substantial training of Government officers and, if regard is not currently given to those principles, what is the likelihood of challenge?

A relatively modest sum has been suggested, which is not particularly unreasonable. There might be £100,000 per annum involved in training, certainly initially. Thereafter, once the principles were embedded and everyone knew what they were doing, the chance of challenge would be nil and the costs would be relatively modest. The benefits of better working relationships would far outweigh any costs, which I think are pretty modest in comparison with those for most bills.

12:00  

I agree with that entirely. I think that the costs will be modest, if there are any costs at all. On the need for training and guidance, we are talking about people who are already used to working in the world of the Scottish Government and local government, so I would be surprised if a great deal of training and awareness-raising was needed. I assume that the training costs would be negligible and I do not believe that those costs feature in the financial memorandum. That is important, because they are not necessary.

Andrew Fraser’s last point is crucial. What outcomes and benefits will we get from the bill? What are the benefits of being able to develop policies that are more appropriate from the beginning? In recent years, we have had experience of policies being developed without local government that are later seen not to work. We have had to revisit those and, as soon as local government has been involved, things have gone forward in partnership and have been highly successful.

For example, on the 1,140 hours of early learning and childcare, since local government was brought round the table, the system has worked and has brought huge benefits across Scotland. We need to look at the beneficial outcomes from enshrining the charter in law and ensuring better partnership working, so that we have better policy and therefore move on in a better way. The financial gains will far outweigh any costs that people might fear.

Councillor Bell, do you have any comments?

No, thank you. I agree entirely with my colleagues so, in the interests of brevity, I will not repeat what they said.

Mr Wightman, do you have any questions for the witnesses?

No. I just thank the witnesses—I have no questions.

In that case, that completes our evidence session. I thank the witnesses for attending and for their helpful contributions. Our next evidence session on the bill, which will be with the Scottish Government, is on 2 December. I thank our witnesses for identifying some key issues to follow up at that meeting.