Official Report 308KB pdf
16:02
The next item of business is reconsideration stage proceedings on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. In dealing with the amendments, members should have before them the bill as passed at stage 3—that is, SP Bill 70B—the marshalled list and the groupings of amendments.
The division bell will sound and proceedings will be suspended for around five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter RTS in the chat function if they are joining us remotely.
Members should now refer to the marshalled list.
Section 2—Duty to act compatibly with the Charter Articles
Group 1 is on the compatibility duty. Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2 to 5.
The amendments that I have lodged to the European Charter of Local Self-Government (Incorporation) (Scotland) Bill on the Scottish Government’s behalf are designed to achieve three things: to retain as much of the bill’s original purpose and practical effect as possible; to frame the applicable duties and remedies clearly within the boundaries of devolved competence to address the Supreme Court judgment’s findings; and, possibly most importantly, to minimise the possibility of a further Supreme Court referral.
As I confirmed when speaking in the debate on the motion to move the bill to the reconsideration stage, my officials have engaged constructively with United Kingdom Government officials for a significant time, which has involved sharing draft amendments and pursuing a co-operative dialogue on the implications of the Supreme Court judgment for the bill’s key operative provisions. That engagement, and the process of developing amendments, ultimately highlighted once again the challenging practical effects of the restrictions on the Parliament’s scope to legislate that result from section 28(7) of the Scotland Act 1998—the provision that states that the power of the Scottish Parliament to make laws for Scotland “does not affect” the power of the UK Parliament to do so—and the Supreme Court’s judgment. As members have had cause to reflect in recent committee discussions on children’s legislation, that can create uncertainty in situations in which devolved compatibility duties might be argued to bear on the effect of UK Parliament legislation operating in devolved areas, including pre‑devolution enactments.
The amendments in this group all concern section 2 of the bill, which places a duty on the Scottish ministers to act compatibly with the charter. Section 2, as passed, was confined to devolved functions but silent about the source of those functions. As such, it included devolved ministerial functions that derive from pre‑devolution UK legislation. Although section 2 was not part of the original Supreme Court reference and was not mentioned in the judgment, the current uncertainty about the effect of section 28(7) means that, if left unamended, the bill might be subject to a further Supreme Court referral—an outcome that Mark Ruskell, the Convention of Scottish Local Authorities and the Scottish Government all wish to avoid.
The group 1 amendments that I have lodged therefore seek to amend section 2 in order to carve out ministers’ functions that sit in UK acts or secondary legislation that has been made under UK acts. That means that devolved functions under pre-devolution UK legislation would not be covered by the compatibility duty. The duty on ministers to exercise functions compatibly with the charter would apply only when they exercise functions that are conferred by acts of the Scottish Parliament, Scottish statutory instruments that are made under acts of the Scottish Parliament or common law powers. The duty would still apply to UK act amendments that are made to acts of the Scottish Parliament, unless the relevant UK legislation expressly requires or permits ministers to act incompatibly with the charter. However, provisions that are made by acts of the Scottish Parliament that are inserted into UK acts would not be subject to the duty, because the amendments provide that a function that is conferred by words inserted by one enactment into another enactment is regarded as conferred only by the modified enactment.
The amendments to section 2 are similar to the approach that was taken at the reconsideration stage for section 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 and have the full support of COSLA, which is the representative organisation of local government in Scotland—the bill’s key stakeholder. Although we do not consider the changes to be strictly necessary in order to bring the bill within competence, they are necessary to minimise the possibility of a further referral and the inevitable delays that would result from that. As such, I consider that they provide the best opportunity to complete reconsideration in this parliamentary session and secure royal assent while still retaining much of the spirit of the bill.
The rationale for that approach is accepted by COSLA and was accepted in many of the stakeholder responses to the Local Government, Housing and Planning Committee’s request for written views on my amendments last month. It was also recognised in the recent University of Glasgow centre for public policy report on the impact of the Supreme Court jurisprudence on section 28(7) of the Scotland Act 1998. Ministerial colleagues and I welcome the report as a significant contribution to the discussion around what section 28(7) of the act means for devolved law making, and I encourage members to read it.
I move amendment 1.
Group 1 deals with the compatibility duty. We voted for the bill back in March 2021, and we will support the cabinet secretary’s amendments in this group, which will narrow the compatibility duty in section 2 so that it applies only to functions conferred by Scottish Parliament primary legislation, Scottish Parliament secondary legislation or common law. We accept that that is a necessity in the light of the Supreme Court’s judgment.
However, in its briefing, the Law Society of Scotland states:
“It is not in the interest of good law making that reconsideration has been delayed by more than 4 years.”
It argues:
“Future Bills which are determined … to be outside the competence of the Scottish Parliament should not have reconsideration delayed beyond two years from the date of the decision.”
Had the Government progressed with this bill as it did with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill back in December 2023, this bill could have been on the statute books well over a year ago.
However, as I have indicated, we will support the amendments in this group.
I thank the cabinet secretary for taking the lead in moving the amendments in this group and in the next group.
It is important to underline that it has taken some time to reach agreement, but the position that we have now reached has been warmly welcomed by COSLA, which accepts that the bill’s scope has to be tightened. That has also been accepted by other stakeholders, including me.
I have nothing further to add other than to say that I urge members to vote for the amendments that the Government has lodged after lengthy consideration with the UK Government.
I call the cabinet secretary to wind up the debate.
I have nothing further to add.
Amendment 1 agreed to.
Amendments 2 to 5 moved—[Shona Robison]—and agreed to.
Section 4—Interpretation of legislation
Group 2 is on the interpretation duty. Amendment 6, in the name of the cabinet secretary, is grouped with amendments 7 to 24.
The amendments in group 2 will revise section 4, on interpreting legislation compatibly with the charter articles, and section 5, on declarations of incompatibility. They will also make consequential changes to section 7, on limiting the retrospective effect of certain court decisions.
The Supreme Court found sections 4 and 5, as passed, to be outwith the Scottish Parliament’s legislative competence. Therefore, my amendments will confine the application of those sections to acts of the Scottish Parliament and Scottish statutory instruments that are made under acts of the Scottish Parliament. Insertions into UK acts by acts of the Scottish Parliament would not be subject to sections 4 and 5. Only wording originating from an act of the Scottish Parliament would have to be read compatibly with the charter and would potentially be subject to a declaration of incompatibility. The amendments will also ensure that sections 4 and 5 do not apply to text inserted into acts of the Scottish Parliament or SSIs by UK legislation, nor to SSIs that are made under powers in UK acts.
That approach seeks to retain as much of the original bill as possible and align it with the amendments that were made to the UNCRC bill during its reconsideration stage in order to minimise the possibility of a further Supreme Court referral.
The amendments to section 7 seek to mirror the revised scope of sections 4 and 5 by ensuring that it applies only to acts of the Scottish Parliament and Scottish statutory instruments that are made under acts of the Scottish Parliament, instead of it making broader reference to “subordinate legislation” and “primary legislation”. That is necessary as a consequence of the amendments to sections 4 and 5, because section 7 relies on the wider compatibility framework elsewhere in the bill.
Section 7 is about the courts being able to remove or limit any retrospective effect of a decision about incompatible legislation, so it stands to reason that references to incompatible legislation in section 7 need to be narrowed to correspond with the narrower focus of sections 4 and 5.
As with group 1, the amendments have the full support of COSLA, the representative body of the bill’s key stakeholder. They were also broadly accepted by stakeholders who responded to the Local Government, Housing and Planning Committee’s call for views last month as the only realistic way of ensuring that the bill remained within devolved competence and avoided another referral to the Supreme Court.
I move amendment 6.
16:15
The group addresses the position of the Supreme Court that the bill is outwith competence. The interpretation duty and the powers that make declarations of incompatibility are now restricted to Scottish Parliament legislation only, and the remittal powers are similarly narrowed. The changes are necessary, and we will support them.
I also draw members’ attention to the evidence from the Faculty of Advocates, which stated that narrowing the scope of the bill does not address the concerns about the lack of establishing case law around the charter. The Faculty of Advocates argued that, if the Parliament wished to protect the power, status and autonomy of local government, a more obvious and effective way would be through enacting primary legislation and increasing powers of local government, particularly in respect of finance.
That is all that I need to say on the amendments. We will support them.
Amendment 6 agreed to.
Amendments 7 to 10 moved—[Shona Robison]—and agreed to.
Section 5—Declaration of incompatibility
Amendments 11 to 18 moved—[Shona Robison]—and agreed to.
After section 5
Amendments 19 and 20 moved—[Shona Robison]—and agreed to.
Section 7—Power to remove or limit retrospective effect of decisions etc
Amendments 21 to 24 moved—[Shona Robison]—and agreed to.
That ends consideration of amendments.
As members will be aware, at this point in the proceedings, the Presiding Officer is required, under standing orders, to decide whether, in her view, any provision in the bill relates to protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In the case of the bill, in the Presiding Officer’s view, no provision of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill relates to a protected subject. Therefore, the bill does not require a supermajority to be approved at reconsideration stage.