Meeting date: Thursday, February 4, 2021
Meeting of the Parliament (Virtual) 04 February 2021 [Draft]
Agenda: Portfolio Question Time, Infrastructure Investment Plan and Capital Spending Review 2021-22 to 2025-26, European Charter of Local Self-Government (Incorporation) (Scotland) Bill: Stage 1, Decision Time, Land Ownership History (Impact of Slavery), Princess Alexandra Eye Pavilion
- Portfolio Question Time
- Infrastructure Investment Plan and Capital Spending Review 2021-22 to 2025-26
- European Charter of Local Self-Government (Incorporation) (Scotland) Bill: Stage 1
- Decision Time
- Land Ownership History (Impact of Slavery)
- Princess Alexandra Eye Pavilion
European Charter of Local Self-Government (Incorporation) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S5M-23963, in the name of Andy Wightman, on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill at stage 1. I ask those members who wish to speak to type R in the chat function.14:50
I am delighted to open this stage 1 debate on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. I thank all those who contributed to the bill’s development, including those who responded to the call for views on the draft proposal and those who gave evidence as part of the stage 1 scrutiny. I also thank the Local Government and Communities Committee for its diligent work and support.
I owe particular thanks to the Convention of Scottish Local Authorities for its support. Scotland’s councils have been calling for incorporation of the charter for a very long time. I thank the Cabinet Secretary for Communities and Local Government for her constructive engagement and support for the bill. Finally, and most of all, I thank the Parliament’s non-Government bills unit for its hard work and support, and I am very grateful to Christine O’Neill QC for drafting a bill that has withstood quite intense legal scrutiny.
The purpose of the bill is to strengthen the standing of local government in Scotland as part of Scotland’s democratic architecture. In my opinion, that is a vital endeavour. Since 1975, when Scotland abolished genuine local government with the scrapping of town councils, local authorities’ standing and powers have slowly but steadily weakened. In a paper that was published in 2013, COSLA wrote:
“Local democracy is weak compared to Europe. Scotland is one of the most centralised countries in Europe. It is no coincidence that our European neighbours are often more successful at improving outcomes, and have much greater turn out at elections. We cannot hope to emulate the success of these countries without acknowledging that they have more local councils, local elected councillors represent fewer people, and that these councils and their services are constitutionally protected and their funding secured by law, even with regard to national policy making. We should seek the same benefit, and the same independence that local government has in most western democracies.”
The means by which the bill strengthens local government is incorporation of the European Charter of Local Self-Government into Scots law. The charter is an international treaty of the Council of Europe that was opened for signature in 1985. Its substantive articles, which are set out in the schedule to the bill, guarantee a set of basic freedoms and protections for local government across the 47 member states of the Council of Europe.
The treaty was signed by the United Kingdom in June 1997, by the newly elected Labour Government, and it came into force on 1 August 1998. However, the charter can have no legal force in domestic law until it is incorporated into domestic law. At its heart, the bill achieves that incorporation in section 2, by placing a legal duty on the Scottish ministers to act compatibly with the charter as reproduced in the schedule.
If the bill is enacted, the charter articles will become law and it will be possible for them to be relied on in the Scottish courts and for legal remedies to be sought for any alleged violation of them. For example, the bill allows a declaration of incompatibility to be made or secondary legislation to be struck down when the section 2 duty has been breached. However, I emphasise that the bill is not designed to encourage legal challenges; it is not a sanctions-driven bill. The aim of the legislation is to develop a culture of compliance with the charter, and two sections of the bill are designed to that specific end.
Section 3 obliges ministers to report at least every five years on steps that they have taken to safeguard local self-government, and section 8 places a duty on members who introduce public bills to Parliament to state the extent to which, in their view, such legislation is compliant with the charter articles.
I turn to the stage 1 report from the Local Government and Communities Committee. I welcome the committee’s support for the bill and its focus on analysing the bill’s legal and practical implications.
As the Faculty of Advocates noted, the bill cannot entrench the charter as some form of constitutional protection for local government in a country with no written constitution. If the bill is enacted, it will provide a check and challenge function only for so long as it remains law and is not amended or repealed. That is the reality for any such bill under the United Kingdom’s constitution, but particularly the other bill that is currently before Parliament that will incorporate international law—namely, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.
In practical terms, the committee is right to note uncertainty as to the legal reach of the charter. Time will tell on that front. Some debate was had in committee as to whether the bill merely sent a message or had far-reaching implications. In my view, the bill, indeed, sends a message—a very important political message—but it also has a substantive legal effect, making compliance with the charter a matter that can now be referred to a court for a ruling when there is a dispute about whether legislation is compliant.
I will briefly mention some amendments that I propose to lodge, should the bill pass at stage 1. The first and most substantive relates to a recommendation that was made by the Delegated Powers and Law Reform Committee in relation to the power in section 6 that would allow ministers to take remedial action in consequence of a declaration of incompatibility by the courts. That is a significant power to delegate to ministers, and the question is whether its use should be constrained in some way. Having reflected on the matter, I can confirm that it is my intention to lodge amendments to attach a super-affirmative procedure to the use of the power, in order to provide the level of scrutiny that is required. I will also lodge amendments to confirm that no criminal offences can be created or amended by the use of the power, and I will reflect further on some technical wording that has been drawn to my attention.
The UK is one of six member states of the Council of Europe not to have given the charter any legal effect in its domestic law. The Scottish Constitutional Convention recommended in 1995 that the Parliament should “embody the principles” contained in the charter—in particular, a principle of general competence. In October 2019, a report by the consultative steering group on the Scottish Parliament, reviewing 20 years of devolution, noted the on-going failure to achieve that. The bill addresses that long-standing concern, and I hope that members will support it.
That the Parliament agrees to the general principles of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
I remind members that, if they want to take part in the debate, they have to type R in the chat function.14:57
As the convener of the Local Government and Communities Committee, I am pleased to speak in support of the bill, which was introduced by Andy Wightman, our colleague on the committee. The comments that follow reflect the collective view of the committee, which—minus Andy—considered the bill at stage 1. Before I go on to them, I thank my fellow committee members, all the witnesses who took the time to give evidence and, as always, our magnificent clerking team. Over the summer, we held a call for views, which received 22 responses. They included well-informed responses from local government, academia, legal experts and others.
As members have heard, the central aim of the bill is to give the European Charter of Local Self-Government a degree of direct effect in our domestic law. The UK is already a signatory to the charter under international law. The Scottish Government told us that it considers itself bound by the charter and that, in its view, it abides by it.
Therefore, the main question that the committee grappled with at stage 1 was: what will the bill actually do? Will it have much effect on local governance at all? A key consideration for the committee was how much of an impact the bill would have. We attempted to gauge that, but we did not find it straightforward. We received evidence to the effect that the bill is somewhat technical or that referred to the symbolic value of passing or not passing it. The prospect of the bill having much financial impact, either on councils or on central Government, or of its leading to a step change in how councils work and provide services, was also doubted.
The Scottish Government said that it is already bound to adhere to the principles that are set out in the bill. A representative from the Society of Local Authority Lawyers and Administrators in Scotland told the committee that there was a
“danger that we exaggerate what the Bill will actually do.”—[Official Report, Local Government and Communities Committee, 18 November 2020; c 32.]
At the same time, many stakeholders viewed the bill as important, necessary and even potentially transformative in terms of the constitutional and working relationship between the state and local government. Some evidence sought to reconcile those two positions by arguing that the bill would be more of a prompt—an enabler of good practice and good partnership working rather than a disruptive game changer—as certain requirements in the bill, such as the requirement for a legislative statement on compatibility, would reduce the risk of future laws or policies being in conflict with the charter articles.
Will the bill be an agent of positive change, or could it have unpredictable, even destructive, effects? We might compare the bill with the Human Rights Act 1998. No one is arguing that the bill ranks equally with the Human Rights Act 1998 in respect of its likely impact, but there are some similarities in what we might call their basic architecture. Both are also alike in incorporating into domestic law a set of principles that are wide ranging, declaratory and somewhat open ended in the language that is used.
I think that most members would agree that, a generation on from the 1998 act, its impact has been resoundingly positive. However, it has thrown up some surprises along the way as it has been tested in the courts. Those surprises have occasionally been challenging and even costly. The 1998 act has also rebalanced power away from the Executive and towards the judiciary, giving it a greater say in determining whether Government acts or omissions are lawful. None of that is necessarily bad in itself, but it is a change, and there is, arguably, the potential for the bill to do the same.
The conclusion that the Local Government and Communities Committee came to is that we should welcome the incorporation of the charter into Scots law. However, that might be called a guarded welcome because, as the Faculty of Advocates and the Law Society of Scotland noted, the full legal reach of the bill is uncertain. If the Parliament agrees to the bill, it should do so with open eyes, alert to the possibility of future cases testing the legal meaning of particular provisions in the charter. That could include cases that touch on policy or even funding issues relating to local government that have not usually been the province of the courts before now.
There are two important matters that help to reassure us. First, incorporating the charter into domestic law would bring us into the European mainstream. Most of our neighbours have gone down that route, and the sky has not yet fallen in. On the contrary, the general view is that doing so has helped to foster a healthier working relationship between central and local government. For instance, there was some evidence that that had made central Governments reassess the way that they consult councils before making important changes. The evidence from Europe is that incorporating the charter into domestic law is more an act of evolution than revolution.
Secondly, no one whom we heard from at stage 1 thought that the bill was likely to mean a rush to the courts. Local government witnesses were unanimously clear that the legal route would be a last resort—a “nuclear option”, as one witness put it—that everyone would be at pains to avoid. The value that witnesses saw in incorporation of the charter was in its role as a backstop. It would enshrine a set of good governance principles in our law and, in so doing, help to level up the working relationship between central and local government.
To put it differently, COSLA and others in local government felt that giving the charter effect in domestic law would help to keep the Scottish Government—and any future Scottish Government—on its toes. That also became the committee’s view, and it summarises why we think that the bill is worth the Parliament’s support.
I note that Mr Wightman and the Scottish Government agree that some amendments will be needed if the bill is agreed to at stage 1. If there is a clear message from the Parliament that it agrees to the general principles of the bill, the committee will, obviously, note that for any future stage 2 scheduling at this late stage of the session.15:03
Did you introduce me, Presiding Officer? I did not hear you.
I did, but I am happy to do it—[Inaudible.] The cabinet secretary will open for the Government.
Apologies—I think that your sound cut out. Nonetheless, I will proceed.
I thank Andy Wightman for introducing the bill and steering it to this point. That is testament to his long-standing commitment to the topic, and I am happy to respond on behalf of the Government.
I thank the Local Government and Communities Committee for its thoughtful stage 1 report and the clerks who assisted in preparing that report. I also thank those who gave evidence to the committee. Their engagement, expertise and experience helped to shape a report and response from the committee that are really helpful in ensuring that we progress the bill effectively.
The bill is about partnership and co-operation—they are at its heart. The Covid-19 pandemic has shown us once again the importance of collaboration—of national and local government working together to respond to local circumstances in order to keep the most vulnerable in our society safe and essential services available. I take every opportunity to thank local government workers across Scotland for the work that they have done and are continuing to do. It has been a remarkable effort.
Developing and maintaining a close, constructive partnership between national and local government has always been a key priority of this Government. To give a sense of that partnership approach and to illustrate the influential role that local government already has, I will point to some areas of success and to mechanisms that are in place for that joint working.
COSLA is a co-signatory to the national performance framework, which sets out our shared ambitions for a successful and inclusive Scotland, with principles that are underpinned by the shared values of kindness, dignity and respect. We have also jointly launched the local governance review as part of our shared commitment to subsidiarity and local democracy. The review creates an exciting opportunity to promote what could be the biggest shift of power since devolution. We want to ensure that decisions are taken as close as possible to those whom they affect most. We want a vibrant and inclusive democracy that supports local self-determination. Mr Wightman’s member’s bill is therefore welcome, as we hope that it will create the conditions for further, more ambitious changes to how Scotland is governed.
Ensuring that local government’s voice is heard and creating the conditions for meaningful engagement are firmly rooted in our policy development process. There are many examples, across portfolios, of local government playing a significant and inclusive role in the decision-making process and in the governance of Scotland.
Despite the UK Government’s decision to delay its budget until March, we have given local government in Scotland as much notice as possible of its settlement, to assist it with planning and to provide it with security. The Cabinet Secretary for Finance announced last week that we will make available to local government a total funding package of £11.6 billion for 2021-22. That includes a £245.6 million increase in core revenue funding and an additional £259 million of non-recurring Covid funding, which makes for total additional revenue funding of more than half a billion pounds.
We have also shown that we are committed to subsidiarity and local decision making. We have introduced ambitious legislation, such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018, which signalled a significant transfer of power to communities across Scotland. The historic 2018 act introduced the regulations that specifically enable relevant local authorities to request the transfer of responsibilities from Scottish ministers to them.
It is my hope that the bill will reinforce the positive working relationship with local government. The incorporation of the charter into domestic law has been a long-held aspiration of COSLA. Our commitment to supporting the bill sends out a strong signal about the value that we place on local government.
Originally, I took a neutral position on Mr Wightman’s bill, to allow for full diligence to be carried out. That is normal with a member’s bill, because we need to fully understand the bill’s implications and its practical application. There are some issues with the drafting, which I think that technical amendments would help to improve. The issues are not substantial, and my officials have been engaging positively with Mr Wightman’s team to discuss what such amendments might involve. I hope that the collaborative approach to amendments that was achieved with the member in charge of the Period Products (Free Provision) (Scotland) Bill can be replicated with this bill, and I think that Parliament is better served because of that approach.
I recognise that there can be challenges and that, at times, national and local government will not agree. I welcome the position of local government colleagues who said in evidence to the committee that they did not think that much, if any, litigation would arise from the bill. The consistent message was that the bill will strengthen local democracy by ensuring parity of esteem between the various layers of government.
However, the committee’s report contained a key message about the legal uncertainty that the bill will introduce in relation to how frequently it will give rise to litigation, how the courts will handle any future cases, and what is called the “legal reach” of the charter—how far it might stray into areas that have so far been seen as belonging more to the policy sphere than to the legal sphere.
Going to court to resolve issues should always be the last option; it should certainly not be the first. I am sure that we can all agree that unnecessary legal challenges take up time and money that can be better used elsewhere. In his opening speech, Andy Wightman noted that this is not a sanctions-driven bill. It is important that national and local government continue to properly discuss issues and understand different perspectives. If there is anything more that we can do to continue to strengthen that relationship, my Cabinet and ministerial colleagues and I are always willing and open to discussing and considering that.
The Government supports the general principles of the bill, and I have set out how I believe we already act to ensure that local government has a full voice and role in the decisions that we take. We want to continue to engage closely with local government, build on the strong platform of collaboration, cement our strong partnership and improve the lives of the people of Scotland. It is my sincere hope that, as the bill progresses through Parliament, it will amplify that endeavour.
I thank Andy Wightman for bringing the bill to this stage.15:10
I am delighted to take part in this debate on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill and to open on behalf of the Scottish Conservatives. I, too, thank Andy Wightman for introducing the bill.
As someone who spent more than 18 years in local government as a councillor, I know how important local democracy is. Councillors and residents know what works best for them and their communities. If we truly believe in the principle of localism, we should trust them to make more decisions for themselves and to have more influence over their budgets and income. That is simply not happening in Scotland. In fact, Scotland is one of the most centralised countries in the world when it comes to local decision making—and the position has got worse in recent years, particularly under the current SNP Government.
Despite many of the arguments that were made at the time, devolution has not brought power closer to our communities; quite the reverse—it has centralised more power in Edinburgh. That is not local government, nor is it local democracy. Our councillors are effectively neutered by diktat from the Scottish Government, and that needs to change.
The proposal in the bill to incorporate the European Charter of Local Self-Government into Scots law is welcome. As has been said, the Scottish and UK Governments have already accepted the principles of the charter, but Scotland is still the only country in Europe in which its articles have not yet been enshrined in law. Many of the principles are already adhered to in Scotland and the rest of the UK. We elect councillors to run our councils, and the councils have wards and ward boundaries that are dealt with by an independent boundary commission, which carries out extensive consultation. Our councils are also able to borrow to support their capital investments.
There are, however, a number of areas in which Scotland does not adhere to the articles of the charter. I will give two examples. First, the charter states that councils should be subject to supervision by a body such as the Scottish Government only to ensure compliance with the law. That is not the case when it comes to planning, with the Scottish Government routinely overturning decisions that are taken by our democratically elected local councillors. In the past year alone, four in 10 council planning decisions were overturned on appeal. The Scottish Conservatives would ban that practice, bringing us into line with the charter.
Secondly, the charter states that councils should be free to decide how to spend their own money and that, as far as possible, grants should not be earmarked for specific purposes. Again, that is not currently done in Scotland. In his evidence to the committee, the convener of Shetland Islands Council suggested that three-fifths of council revenue was ring fenced for national outcomes, making it very difficult for councils to make a difference. That would need to change to bring us into line with the charter.
It is welcome that the Scottish Government and the cabinet secretary have committed to supporting the bill. However, one could argue that significant policy changes require to be put in place to ensure that there is no breach of the law the day after it is put in place.
Section 6 gives Scottish ministers quite extensive powers to make regulations, including the power to amend primary legislation, should it be deemed that existing law is incompatible with the provisions of the bill. Given the SNP’s poor track record on localism, however, we must question whether it is committed to bringing its policies into line with the articles of the charter.
A more fundamental question is whether the bill will achieve its desired objectives. Section 5 enables the Court of Session or the UK Supreme Court to declare that a provision in an act or subordinate legislation within the Scottish Parliament’s competence is incompatible with the charter. That will need to be given further consideration at stage 2.
I welcome the bill and will support it at stage 1. For too long, the Scottish National Party Government has treated local councils with contempt and has undermined local democracy. We in the Scottish Conservatives value the principle of localism and want to do everything within our power to ensure that councils also have that localism objective.
Putting local government in Scotland on the same legislative footing as applies in the rest of Europe is certainly a step in the right direction and one that I very much welcome and support. However, we also need to see meaningful policy change from the Scottish Government if we are truly to meet the principles of the European Charter of Local Self-Government.
I call Sarah Boyack to open for Labour.15:15
I am delighted that we are discussing the incorporation of the European Charter of Local Self-Government. In 1997, the Labour Government signed up to the charter and it ratified it a year later. I am glad that we are here, more than two decades on, to put the charter into Scottish law and empower Scottish local government.
As has been said in the chamber before, in our councils’ response to the pandemic, they have stepped up to the challenge. They have been capable of fundamental change in their service delivery informed by their knowledge and experience of what local communities and businesses need, and they have delivered real and workable solutions.
As a member of the Local Government and Communities Committee, I have worked with colleagues to scrutinise the bill and the intention behind it. I thank all the witnesses and others who have given us evidence and the Parliament’s clerks for the support that we have received from them.
Since I returned to Parliament in 2019, I have been in a position to see just why the bill is so necessary through my conversations with local government representatives. Alexander Stewart referenced the written submission to the committee from the leader of Shetland Islands Council. In talking about the extent to which his budget is now focused on issues that he is working on with the Scottish Government, the councillor described the sense that councils are
“becoming very much like health boards.”—[Official Report, Local Government and Communities Committee, 18 November 2020; c 43.]
I have had feedback from councillor colleagues across the country who have seen their autonomy as elected officials being chipped away by centralised policy decisions.
In introducing the bill, Andy Wightman has aimed to create parity of esteem between the Scottish Government and local government, ensuring that decisions that impact locally are made locally. That is a principle that I and my Labour colleagues whole-heartedly support. The UK was the only one of the 47 member states of the Council of Europe not to have transposed the charter, so it will make an important political statement for us to support the bill today.
Section 2 of the bill places a duty on the Scottish ministers
“to act compatibly with the Charter Articles”,
and section 4 places an obligation on the Parliament to pass legislation
“which is compatible with the Charter Articles.”
That is an important step in ensuring that the work of our elected representatives in the chamber complements the work that elected representatives in our councils are doing to support their local communities.
Section 8 is also of great importance. It requires individual members who bring forward a member’s bill to state whether, in their view,
“the Bill is compatible with the Charter”.
I believe that that gives members of the Parliament the opportunity to work with their council colleagues to strengthen the impact of members’ bills that come before the Parliament by ensuring that they are compliant and can be facilitated by councils in a way that understands local needs and aspirations.
I note that the squeeze on local authority resources has been exacerbated under the SNP Government. Despite voicing its support for initiatives such as the local governance review and the bill, this year’s budget is another disappointment for local government. Local authorities have seen their budgets lose £937 million in non-ring-fenced revenue expenditure since 2013-14.
As I said, the pandemic has highlighted just how dependent we and our local communities are on local government to support us. Councils have shown us the myriad of ways in which they can innovate to respond to crisis. In its submission to the committee, COSLA stated that the bill
“would strengthen local and national governments’ ability to work jointly to improve outcomes in communities across Scotland ... strengthen Scotland’s democracy by ensuring that communities enjoy the same local democratic rights that are already commonplace across Europe and beyond ... deliver the unfinished business of the Scottish Parliament by ensuring that for the first time this partnership between national and local government is built into Scotland’s system of democratic governance, and reflected in its day to day culture and practice”
“ensure that Scotland fully complies with international treaty obligations, and addresses outstanding issues that have previously been identified in this regard.”
I completely agree with COSLA. Those are important principles, and I look forward to Parliament agreeing to the principles of the bill—I hope—this afternoon with cross-party support, and to addressing the detailed issues when it comes to committee.
I call John Finnie to speak on behalf of the Green Party, and I hand over the chair to my colleague.15:20
I congratulate my friend and colleague Andy Wightman on getting his worthy bill proposal to this point. I know how much work is involved, and the commitment that is required, in bringing a member’s bill to Parliament. A team effort is required—I had that support from Steven in my bill team, and Andy Wightman had it from Gillian, Charlotte and Ciaran in his team.
We are here because of Andy Wightman’s forensic approach to all his work, which is reflected in what we are discussing. The bill is about the principle of incorporation of the European Charter of Local Self-Government, and I hope that it will be agreed unanimously. It is entirely in line with Mr Wightman’s long-standing commitment to the principle of subsidiarity and the importance of our local government as a vibrant and—dare I say it—radical local democracy.
We know from the Scottish Parliament information centre briefing that the charter has been in place since 1985 and that all 47 members of the European Council are signatories, including the UK since 1998. I also note from our briefing that it is expected that any new states to join the council would sign the treaty. This is perhaps not for today’s debate, but we would get there with an independent Scotland, and I welcome the opportunity that Andy Wightman has given us to accelerate that process.
We also learn from the briefing that the UK has a dualist legal system in which domestic and international law are distinct and separate from each other and that, in order to give public international law the same legal authority as domestic law, it must be incorporated into domestic law. That would give legal effect to ensure that issues can be enforced by Scottish courts.
The policy memorandum confirms at paragraph 61 that the incorporation of the charter will be achieved by reproducing in the bill the wording of the principles of the charter. It commits signatories to basic rules that seek to uphold the political, administrative and financial independence of local authorities through legislation.
Members have talked about the role of COSLA. In 2013, it established a commission that talked about identifying
“a route map to deliver the full benefits of a shift in power towards local democracy for people in Scotland”.
In his blog, Andy Wightman asks: “Why does this matter?” He goes on to say that the charter
“is designed to provide constitutional protections for local government”,
and to outline why those protections are currently absent and how they relate to our structures. He says that, if the bill is passed, as I hope that it will be, incorporation would allow anyone to
“challenge any executive action of Scottish Ministers or legislation passed by the Scottish Parliament if they believe that either is incompatible with the Charter (which, being international law, has primacy).”
He goes on:
“The Courts will have the power to quash actions”,
“Bill gives ... teeth”
to enable them to do so.
Andy Wightman goes on to say—the cabinet secretary referred to COSLA’s position in this respect—that the bill is not about encouraging legal actions; rather, it is about heightening awareness of the provisions of the charter, ensuring compliance with them and putting
“a duty on Scottish Ministers to promote”
There are undoubtedly issues around centralisation, but those are fundamentally about power struggles and tensions around planning, to which members have alluded. Is local government independent if it is limited in its ability to raise finance? The implications of membership drops for the rural councils—ironically, as a result of the Islands (Scotland) Act 2018—are something that many in the Highlands and Islands find very frustrating. If a central Government of any colour gives a council money and then determines the nature of the spend, that council is not independent.
Let us pass the bill not for the sake of it, important though it is, but because of what it can contribute to our vibrant local democracy and discussion thereon. It is with pleasure that the Scottish Green Party will support Mr Wightman’s motion on the bill tonight.
I thank my colleague Christine Grahame for handing over the chair. I call Alex Cole-Hamilton, to be followed by Keith Brown.15:24
I offer my thanks and the thanks of my party to Andy Wightman for introducing an important bill to the Parliament. It is a reminder of what an asset he is to the chamber. My party welcomes autonomy for our local authorities and efforts to increase that autonomy wherever we find them, so we will be support the bill today.
Councils have worked in lockstep with the Scottish and UK Governments during the pandemic. Local authority staff have been critical to getting support to those who need it, and we are grateful to them for that. That is why the Scottish Liberal Democrats have repeatedly pressed the Government to ensure that money reaches the front line where it is needed.
Before the pandemic struck, my party had spent years appealing to the Scottish Government to stop hollowing out local government and treating it with contempt. It has handed councils disproportionate cuts year after year, and has stripped them of the power to do what is right for their areas. In addition to councils’ funding settlements being squeezed to a much greater degree than the Scottish Government’s budget has been, greater proportions of their budgets have been ring fenced by ministers for their approved purposes. That has forced local authorities to cut services that people rely on and to increase charges. It is important that we allow our councils the financial freedom to plan their budgets and to tailor plans to what the local community needs.
My party believes that, just like Holyrood, local councils should have the power to raise the majority of the money that they spend. We oppose the centralisation of services that we have seen at the hands of the Government, such as the changes to the police force. We oppose the SNP’s entrenching of the broken council tax, after it promised to scrap it.
This is not the first time that the European Charter of Local Self-Government has been discussed at Holyrood. Back in 2015, during the passage of the Community Empowerment (Scotland) Bill, my former colleague Tavish Scott lodged amendments at stages 2 and 3 to enshrine the principles of the charter in law. When he was proposing that, he said:
“devolution should not stop in this building; rather, we should ensure that local government and those who serve communities, representing all political parties and none, have the ability to use the power of general competence in the most sensible and constructive way for the people whom they serve.”—[Official Report, Local Government and Regeneration Committee, 11 March 2015; c 3.]
Sadly, neither of Tavish Scott’s amendments was agreed to at the time, despite support from key stakeholders, including COSLA. I am glad, however, that we now have the opportunity to make the powers of our local authorities crystal clear, ensuring their autonomy.
The 10 principles of the charter were ratified by all 47 member states of the Council of Europe in 1998, and we should take notice of that unanimous endorsement. If the bill is passed, all bills that are introduced in the Parliament in future will have to be checked for compatibility with the charter, and I welcome that all-encompassing approach.
Protection for local decision making is key, along with financial freedom. The Scottish Liberal Democrats will always stand up for local government, and Liberal Democrat members will support the bill tonight.15:27
I come to the debate with the benefit, most recently, of being a member of the Local Government and Communities Committee, which has held three meetings to hear and consider evidence from a range of bodies on the issues that are covered by the bill. I wish also to draw on my experience working as a local government officer for nearly two decades, as a councillor for 11 years and as a member of the European Committee of the Regions for six years. I recall supporting incorporation of the charter into Scots law at the Convention of Scottish Local Authorities more than 20 years ago, as a council leader.
It is unfortunate that the contributions from the Conservatives and the Liberal Democrats—they were coalition partners, of course—have been to change the debate into an anti-SNP rant. I refer in particular to Alexander Stewart’s speech. The idea that, during my time in local government, from the 1980s, anybody would have seen the Conservatives, or latterly the Liberal Democrats, as friends of local government is just laughable.
I congratulate Mr Wightman on introducing his member’s bill in a stage 1 debate in the chamber. As has been said, the bill seeks to incorporate into Scots law the European Charter of Local Self-Government, which is a treaty of the Council of Europe that was adopted in 1985 and ratified by the UK in 1998, before this Parliament was even established.
The Council of Europe is one European institution of which the UK remains a member, despite Brexit. Once again, however, the UK remains typically out of step with the rest of Europe, as the UK and Hungary are the only two countries out of 47 not to have incorporated the charter into their domestic legal frameworks. I am conscious that there have been about four different computations of how many countries have signed up to the charter: we will have to get that right by the time we get to stage 2. Certainly, however, the UK’s position undermines any claims that it makes—as was put forward by Alexander Stewart—to be a supporter of what could be called true devolution for local authorities.
Fortunately, in this sphere—if not in others—we in Scotland have the power in our own hands to resist being dragged away from the European mainstream by the Europhobes of Whitehall. Yes—the treaty was ratified in 1998, but ratification does not make law, as the Law Society of Scotland pointed out in its submission, and as the explanatory notes to the bill also make clear. In the legal systems of the UK,
“domestic and international law are distinct and separate from one another”,
and the Law Society agrees with the assessment that
“to give public international law the same legal authority as domestic law it must be incorporated into domestic law.“
The committee received submissions from a range of interested individuals and organisations. Not one of those submissions opposed incorporation of the charter, with most, including bodies such as COSLA and the Society of Local Authority Lawyers and Administrators in Scotland clearly supporting the case for incorporation. COSLA said that
“It would strengthen Scotland’s democracy by ensuring that communities enjoy the same local democratic rights that are already commonplace across Europe and beyond”
and that incorporation
“would strengthen local and national government’s ability to work jointly to improve outcomes in communities across Scotland.”
That is something that we have seen across the country over the past year, so I think that this is an appropriate point at which to reflect on the huge effort that has been put in by local council staff, officers and elected members of all different parties across the whole of Scotland throughout the course of the pandemic. In so many situations, they have been on the front line delivering the help, support and advice that the people and communities that we represent have needed.
As we discussed the bill in committee, it became clear that there were concerns that the bill would not make a difference and that it could instead be a charter for endless and expensive legal disputes between different partners in government. I expect and hope that it will not. To those who have said that they want it to establish real parity of esteem among the various arms of government, I say that I share that hope, but I think that what is much more likely to achieve that is the fantastic role that our local authorities have played during the pandemic, in providing absolutely vital local services to people.
I support the bill’s progress to stage 2.15:31
The debate about autonomy for local authorities in Scotland has gone on for some time in the Scottish Parliament. Most parties have, at various points and from various perspectives, made the case for councils to have more power. Unfortunately, the only party that seems to be resistant to that is the one that has sat in Government since 2007. In that time, we have seen a complete failure to deliver more control to town halls, and councils have had their funding cut to the bone, in the process.
It could be argued that things are getting worse. Just last month, the Scottish Conservatives revealed that 36 per cent of the planning decisions that were made by councils but then appealed by applicants were overturned. That tells us everything that we need to know about this Scottish Government’s commitment to local decision making.
It is galling for local people to see their council go through a careful planning process in which residents and community councils make their feelings known, the developers are allowed to properly plead their case, and a group of locally accountable members—often from a coalition of more than one political party—reach a measured decision, only for that all to be swept aside when the developers go over the heads of the council to a Scottish Government in Edinburgh that, in one in three instances, rides over the top of the local decision and sides with the controversial development in question. The people had said no, the community groups had said no and the council had said no, yet still the Scottish Government waved the plans through, regardless. Those are major developments that affect people’s everyday lives—wind farms, large housing developments and controversial infrastructure and redevelopment proposals.
It is clear that something needs to be done about that. Incorporating the European Charter of Local Self-Government into Scots law would go at least some way towards strengthening the hand of local government. The umbrella group for Scotland’s local authorities, COSLA, has praised the bill, stating that it will bring Scotland up to speed with other major countries in Europe. It also said that the bill would have a positive impact on its members, saying that
“it is key to building on local”
government’s and the Scottish Government’s
“joint commitment to improve outcomes”
for our communities
“and renew democratic participation across Scotland.”
Enthusing people about the importance of local democracy is key to all that.
In the most recent council elections in 2017, however, voter turnout was just 47 per cent; more people stayed at home than went to the polling station. In some areas, the figure was as low as 39 per cent. If the voters had faith that the people whom they elected locally had more influence on the decisions that impact on their lives, perhaps those disappointing statistics would soon improve.
For too long, devolution has come into the Scottish Parliament without being pushed out the other side to those who need it most. The SNP Government has grabbed powers from both sides, and it still wants more. Establishment of a legal framework that prioritises the importance of community leadership and local accountability would at least begin to turn the tide on that worrying trend. People need to see equality of decision making, so that they can have faith in the system, from the Borders to the Highlands and in all the areas between.
Local councils know their areas and their people best. As such, I will support the bill at stage 1 this evening.15:36
I thank my colleague Andy Wightman for his hard work on the bill.
I served as a councillor on Fife Council from 1995 until I was elected as an MSP in 2011. Many of my fellow MSPs share the experience of having been elected first as a local councillor, then later as an MSP. Most of us who have that experience have seen the relationship between local government and the Scottish Government at first hand and from both sides of the fence. We have seen the tensions that can arise when one political party is in Government, and a different political party is in control in a local authority. We have formed our own perceptions of the strengths and weaknesses of our current system of local government, and of its relationship with central Government.
My constituency includes the town of Kirkcaldy. The first mention of its town council was in around 1582, and in 1644, it became a royal burgh. Therefore, it has a long tradition of local government. As a result of local government reorganisation in the 1970s, the town became part of the Kirkcaldy district in 1975. In 1996, Kirkcaldy District Council became part of Fife Council, through the 1990s reorganisation.
Burntisland is also in my constituency, and its history of local government is even longer than that of Kirkcaldy. It became a royal burgh in 1541, and its local government shared the same fate as Kirkcaldy, which shows the demise of local decision making. Local government does not stand still—it evolves over time. Part of that evolution is the relationship with central Government.
The bill has a European dimension, because it concerns a European charter. Kirkcaldy, which has a population of around 49,000, is twinned with Ingolstadt in Bavaria, which has a population of 127,000. Our respective civic leaders and community groups have been visiting each other since 1962. Burntisland is twinned with Flekkefjord in south-west Norway, which has a population of 9,000. That relationship began in 1946, so it is even older than that between Kirkcaldy and Ingolstadt. Both twin towns sit in local governance systems that are very different to those of Kirkcaldy and Burntisland. Such relationships remind us that other places approach local government differently; therefore, we must always ask ourselves whether we can learn from others and make improvements for ourselves.
I have reviewed the evidence that has been submitted to the Local Government and Communities Committee, and it seems as though we are already bound to comply with the charter, given that it is an international legal instrument. However, no means exist to ensure compliance, and it is not part of our domestic law. The UK Government expressed its support for the European charter by signing it in 2009. As I understand it, the bill would import the charter into Scots law, so it will have direct effect.
The Local Government and Communities Committee received submissions on the bill from a range of sources, including a number of our local authorities, the Faculty of Advocates, the Law Society of Scotland, COSLA and Reform Scotland. The evidence that was submitted to the committee revealed to me that incorporation of the European charter into Scots law has long been argued for by COSLA. COSLA was involved in drafting the charter back in the 1980s, and its 2014 commission on strengthening local democracy recommended incorporation into Scots law.
Beyond COSLA’s legitimate interest in the matter, in 1999, the consultative steering group on the Scottish Parliament argued for incorporation of the charter, and in 2019, when it published its 20th anniversary report, it expressed regret that that had not happened.
In 2015, the UK all-party parliamentary group on reform, decentralisation and devolution commissioned an inquiry to consider how devolution across the whole United Kingdom could be better achieved. The group’s final report recommended transposing the European Charter on Local Self-Government into primary legislation.
I was particularly encouraged that the Local Government and Communities Committee expressed in its stage 1 report that it does not expect the bill to be “disruptive”, and that it
“would act more as a spur for local and central government to cooperate effectively, to make better laws and policies, and to avoid conflict.”
If the Scottish Parliament can enact legislation that will improve relationships between local government and the Scottish Government, I am in favour of it in principle. I am pleased to note that the Scottish Government has expressed support for the bill.15:40
I congratulate our number 1 pain in the whatever, Andy Wightman, who is so to great and good effect in this particular case, as in so many others.
As a member for 59 meetings of the Local Government and Regeneration Committee in session 4, I fully appreciate the importance of the bill. Its introduction is an important step for both the charter and Scotland, and will ensure maximum impact. The bill takes us towards clarifying and improving the relationship between local and national Government; it provides clarity on how local and national Government should interact and on their mutual responsibilities to each other in terms of engagement, underpinned by law as a firm foundation for that interaction.
The bill removes ambiguity and formalises the Scottish Government’s commitment to local government, whatever the complexion of any future Government, and starts to equalise the relationship between the two, providing for balance through a mediated legal process. The bill enhances understanding of the relationship and respective responsibilities and I believe that it will encourage even greater operational efficiency in both local and national Government.
For both parts of our government system in Scotland, the crisis over the past year has shown what we are capable of and I hope that the bill supports that and that local government is further strengthened. The quality of our democracy will improve with the bill, encouraging action to be taken locally and giving greater access to decision making because there will be more of it that is local. More people outside the directly elected group of people who run things, or think that they run things, will be involved. Decision makers who are accessible make better decisions—that is democracy.
Scottish councillors probably represent more people on average than almost any local politicians in Europe. Indeed, if all the council seats in Scotland were of the same area as one seat that I know of, there would be a mere 12 councillors in the whole of Scotland. Some of the big council seats are simply untenable, but the bill does not address that issue, which we will need to address another day.
A benefit of the bill is adaptability. It places clear parameters on the roles of local and national government and puts responsibility in the hands of communities, with empowerment to take action and the confidence to do so. That means that local government will be even more prepared to apply distinctive solutions to challenges, using local strengths.
Other members have referred to the bill’s technical aspects and the Law Society has said that the implementation period of six months is rather short, which I agree with. There will be considerable changes, so that timescale is not suitable. The second issue is whether a reporting cycle of five years is too long, which I suspect that it is. We need to look at those issues, but that is what stages 2 and 3 are all about. However, the bill fits with what we envisage for local government.
I want to deconstruct here a canard that has run through too many members’ speeches, which is that the SNP Government is a centralising one. In 2007, when we came into power, we found that we had inherited from the Liberal-Labour Administration a situation that saw nearly a quarter of councils’ spending ring fenced. Within months we had reduced that to under 2 per cent. Better research is required by colleagues on other benches. The robust interchanges of political debate are fine, but we should base it on facts. I am happy to support the bill.15:44
I speak in support of the bill, which seeks to incorporate the European Charter of Local Self-Government into Scots law, as others have mentioned.
The charter was created in 1985 by the Council of Europe, setting out 10 principles to protect the basic powers of local authorities. It advocates for the principle of subsidiarity and that local authorities should be able to regulate and manage public affairs under their responsibility in the interests of their populations. We have seen rampant centralisation and the disempowerment of local authorities, so they are in desperate need of this legislation.
The charter ensures that public responsibilities should be exercised by the authorities closest to the people who are affected by their decisions. A higher level of government should become involved only when it is impossible, or less efficient, to deliver at the level immediately below.
If the bill passes, it would allow individuals and organisations to challenge the Scottish Government in court if its laws or decisions were not compatible with the charter, so it is not surprising that many local authorities support the bill.
Covid support has highlighted to me the benefits of decision making taking place at the most local level possible. Local authorities across the Highlands and Islands have, in many ways, very different geographies and socioeconomic pressures to those in the rest of Scotland. The charter would strengthen their ability to have local solutions for local problems.
When I contact councils about delays in making Covid business support available, they tell me that they are waiting for the criteria for distribution from the Scottish Government. It is simply wrong that the Government announces funds and builds expectation, but fails our councils and those who need that support by being tardy with the criteria. The criteria should be set by the councils, because they know their communities.
There is also strong support from Orkney Islands Council and Shetland Islands Council, which, I am sure, hoped that the Islands (Scotland) Act 2018 would meet some of these aspirations. Unfortunately, we have seen little that is tangible from that legislation. The councils know what is best for their communities and how to make the most of the resources that are available to them in their unique geographical contexts.
Implementing the charter could give greater independence to local authorities in their distribution of Covid-19 recovery grants and funding, targeting the businesses and communities that are most in need in their areas. In ordinary times, it would give them flexibility to serve their communities’ needs with the funds that are available.
Sadly, we see local government being increasingly disempowered. The Boundary Commission for Scotland is looking to cut the number of councillors representing the vast rural areas of Highland Council. That would do nothing for local decision making and constituents’ ability to contact their councillors would be made even more difficult.
Incorporating the charter into Scots law would mark a new era of strong, effective and responsive local government that best serves every community, taking into account their local authority’s particular economic, social and geographical needs. I will therefore support the bill tonight.15:48
I, too, thank Andy Wightman for introducing the bill. At its heart, this is about strengthening our democracy in every community across Scotland, making it more effective, accountable and accessible to the people whom it serves.
The bill incorporates into Scots law 11 articles of the European Charter of Local Self-Government, which was ratified by the UK in 1998. The Scottish Government already adheres to the charter’s principles; nonetheless, the bill is important.
The Local Government and Communities Committee agrees that
“passing the Bill creates the opportunity and space for local and central government to recommit together to an effective, respectful and inclusive working partnership”.
The committee also agrees that
“the Bill would rectify an anomaly: it would mean that Scotland would no longer be one of the last remaining jurisdictions in the continent of Europe not to have given the Charter direct legal standing in domestic law.”
Additionally, the bill highlights that co-operation and collaboration between local and national Government are paramount to a functioning democracy. At no point have we seen that more—nor has it been more essential—than during the past year. The Covid-19 pandemic has required all Government agencies and local authorities to work together to keep people throughout Scotland safe and supported. Every day, we see council employees, national health service staff and a whole range of volunteers and third sector agencies providing support to people who are shielding, the families of key workers, those who have to self-isolate, and individuals who are suffering from Covid and who are in hospital. Those are all fantastic examples of people and organisations working collaboratively to deliver for the people of Scotland. If it had not been for councils, we would not have got tens of millions of pounds-worth of support to the many businesses that have been forced to close due to the pandemic.
As a new member of the Local Government and Communities Committee, I have not yet focused on the detail of the bill. I have tried to highlight the importance of the partnership that already exists between national and local government and why that needs to be protected and supported. I believe that the bill, the local governance review and the work associated with the new fiscal framework for local government are the mechanisms to do that and to ensure that such partnership is based on mutual respect.
Co-operative working between the Government and councils is not new: the concordat between local government and the Scottish Government was signed back in 2008. It aimed to deliver benefits to the people of Scotland, support the Scottish Government in delivering its purposed, strategic directives and national outcomes, and empower local government bodies and their partners to deliver on local priorities.
In more recent years, the SNP Government has committed to local decision making, as has been demonstrated by ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018, both of which signalled a significant transfer of powers to communities across Scotland.
I will be pleased to join colleagues in supporting the general principles of the bill at decision time. Working collaboratively with local government is—and always will be—a priority for me, the SNP Government and, I hope, all other parties represented in the chamber.
I call Fulton MacGregor, who will be the final speaker before we move to closing speeches.15:52
As other members have said, the Scottish Government values the role of local government and is committed to supporting the bill. I am not a member of the Local Government and Communities Committee, but from what I can tell there is fairly broad cross-party support for and consensus on the bill.
At this stage I should declare an interest, in that I was previously a councillor on North Lanarkshire Council and was a social worker registered with the Scottish Social Services Council.
The Covid-19 pandemic has shone a light on the pivotal role that our councils and their workers play in communities, from teachers and—as members would expect me to say—social workers to the many others who are working throughout these challenging times, often putting the needs of those they serve first, and before their own. However, many other council workers often feel forgotten about, such as refuse collectors, crossing patrollers, workers in registry offices and so many others that it would be difficult to list them all. New roles in councils have been created in the response to the pandemic, including in teams set up to administer the ever-expanding business grants and funding schemes. I pay tribute to the team at North Lanarkshire Council who have worked tirelessly to support local businesses in my constituency. Of course, I extend those thanks to all North Lanarkshire Council and other local government workers.
The committee recognises that, in supporting the principles of the European Charter of Local Self-Government, the bill guides good governance in the local government sector and helps to protect councils’ status, resources and autonomy. Scotland’s local government sector should feel empowered and able to carry out its duties effectively. I believe that following the principles set out in the charter is one way of helping to achieve that.
Developing and maintaining a close, constructive partnership between central and local government has always been a key priority of the SNP Government. That can be demonstrated through the budget bill process, in which—whatever members’ views on the settlement and where the budget should sit—it is clear that the cabinet secretary has an open-door policy with COSLA and others.
The bill will provide an opportunity to ensure that such a culture of partnership and participation is enshrined in Scots law. The Scottish Government is committed to local decision making, and ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018 has already seen a radical transfer of powers to communities across Scotland. We all want a vibrant, inclusive democracy and we support local self-determination. The bill is welcome as it will help to create the conditions for further more ambitious changes to how Scotland is governed.
More communities being encouraged to use the 2015 act to run local resources can only be a good thing—we have all had queries about old sports pitches or accommodation. In North Lanarkshire—again, perhaps after a slow start—there is more evidence of that happening now, of which Kirkshaws neighbourhood centre in my constituency is a good example.
I also believe that local area partnerships could have more teeth. I felt that even back in my time as a councillor. Councils such as North Lanarkshire Council are in themselves massive institutions and often people feel further—metaphorically speaking—from decision making in the civic centre in Motherwell, or whatever the equivalent is for other councils, than they do from Edinburgh or sometimes even from London. We need to take that into account. Local groups, with councillors and stakeholders for a certain town or village, are almost always better placed to make key decisions about our communities. That is something that I think we all believe in.
I want to touch on a point that Alison Harris raised about planning applications. As the local government minister Kevin Stewart will know, I am seeking a round-table event for a number of communities in my consistency, mainly in the Gartcosh and Stepps areas, which have been impacted in recent years by housing developments. In many of those cases, the local authority has rejected an application, but the decision is later overturned. By engaging local communities at an earlier stage and in an on-going way, we can work together to find the right balance between house and infrastructure building and protecting green space. I know from the recent planning bill that a lot of work has been done in that area.
On the matter of green space, there are many great opportunities in our communities to enhance outdoor space and positively impact communities, especially where there is perhaps deprivation. One such example of that is the old Monkland canal in Coatbridge, which was tidied up by volunteers during the lockdown. It is crying out for joined-up working from the Government, the council, Scottish Canals and others—something, incidentally, that I have been working on through the formation of a stakeholder group that I convene, which has already had two meetings. Those are just some thoughts on my constituency.
In conclusion, this Government is committed to local decision making, as is demonstrated by ambitious legislation such as the Community Empowerment (Scotland) Act 2015 and the Islands (Scotland) Act 2018, which signalled a significant transfer of powers to communities across Scotland. I support the general principles of the bill at stage 1.
We move to the closing speeches.15:57
This has been an important debate. Following this bill, it is vital that we see the change that COSLA’s political leadership has agreed that we need on a cross-party basis. Now is the time to review how powers, responsibilities and resources are shared across national and local spheres of government and with communities. It will amuse my local colleagues when I tell them that Stewart Stevenson thinks that there is only 2 per cent ring fencing in this year’s budget.
There can be no meaningful change without leadership and commitment to the three interlinked empowerments—community, functional and fiscal change. The development of one without the other will lead to changes that are superficial. How do you empower communities in service delivery if that is not how national services are delivered locally? In relation to the recent Period Products (Free Provision) (Scotland) Act 2021 we discussed how we need to give local organisations the financial flexibility to change how they deliver in line with local need.
It is important that the bill is followed not by piecemeal change but by real change across the public sector. It is vital to consider the points that Rhoda Grant made about the diversity of Scotland, and the Highlands and Islands in particular, in terms of geography and socioeconomic pressures. The charter would have the ability to strengthen local solutions to local problems.
There are key areas where we need to see a new respect for our councils, not the micromanagement that we saw last summer, when local authorities had to make urgent decisions on the pandemic without any confidence about how the Scottish Government would deliver on consequentials. Indeed, in last week’s budget, we saw our councils praised on the one hand, yet given an underfunded council tax offer on the other.
To give an example of how things need to change in day-to-day legislation, yesterday we debated the short-term lets control areas order during the Local Government and Communities Committee meeting. However, although that gives councils the opportunity to propose a short-term let control order, the power to approve or refuse such an order stays with the minister.
We have now had a decade of cuts to local council budgets, and it is high time that our councils had more power. A key part of delivering on short-term lets would be giving our councils the power to introduce a tourism levy—something that I was working on during the last session of the Parliament—but to date there has been only a consultation on the principle of a tourist levy from the Government, and we will now have to wait until the next parliamentary session for action.
The charter says that local authorities shall be entitled to
“adequate financial resources of their own, of which they may dispose freely within the framework of their powers”,
that councils’ financial resources
“shall be commensurate with the responsibilities provided for by the constitution and the law”,
that they should be of a
“sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks”
and that at least part of their financial resources must come from local taxes and charges
“of which, within the limits of statute, they have the power to determine the rate.”
It makes clear that although measures taken to correct the effect of unequal resources between councils are possible, they must not
“diminish the discretion local authorities may exercise within their own sphere of responsibility.”
All those principles are important.
I hope that the bill will come back and we will be able to pass it at stage 3 during this parliamentary session. I hope that it will provide a new parity, and that the SNP Government will change tack and retreat from the centralisation that has been a hallmark of its time in power. We need both a change in culture and to deliver respect daily.
I hope that members support this bill. It can deliver change that will empower our councils and the communities that they serve. I look forward to seeing that change being delivered.16:01
It is a pleasure to speak in the debate. I thank the Local Government and Communities Committee for its work on the bill. It produced a first-class report, and I am only sorry that I was not on the committee to be part of its consideration. As members know, I was a very enthusiastic member of the committee until fairly recently.
I knew that Andy Wightman’s bill was coming up, and, indeed, I was a supporter of the committee dealing with it in this parliamentary session. I consider Andy Wightman to be a friend. We have often been on the same page—although not always. He has been a strong advocate for local government—as have I, but he has gone further than me by introducing the bill. I back the bill and congratulate him on it.
In essence, the bill is about showing respect to local government—something that has been, and is, lacking in this country. The bill aims to strengthen the status and standing of local government by incorporating the European charter into Scots law. That includes making it possible to challenge, in the Scottish courts, any executive action by Scottish ministers within devolved competence or any legislation that is within the legislative competence of the Scottish Parliament and is believed to be incompatible with the charter.
The bill does a number of things, but two of them are really important. It places a duty on Scottish ministers to act compatibly with the charter articles and it places a duty on Scottish ministers to promote self-government.
We could have quite a few debates in the years ahead over that last point. For example, how could it be argued that local self-government was being promoted if powers are centralised? How would the current restrictions on civil liberties be compatible with that? How would year-on-year cuts to council budgets be compatible with that? We could have some fun, and I hope that I am here to see it.
Mr Wightman contends that Scotland is unusual in Europe in not having transposed the charter into domestic law. One of the key questions for the committee was what the impact of the bill would be, and it struggled with that. In some ways, it could be considered symbolic. However, I do not think that that would be the case.
The charter has a number of key principles, which have been mentioned by some of today’s speakers. There have been some good contributions today, most notably by my friend Alexander Stewart, who made a blistering argument in favour of respecting local government.
The committee convener, James Dornan, gave a very considered speech on behalf of the committee. Aileen Campbell said that the bill was about partnership and will strengthen local democracy. Sarah Boyack told us that councillors feel that their autonomy is being chipped away at. Keith Brown was Keith Brown and David Torrance and others were better.
However, the last word should go to Andy Wightman—always a man of independent mind and now at peace with himself as a genuine independent. In his opening remarks he said that local authorities’ standing and powers have been weakened. The bill aims to fix that, which is why we support it.16:05
It is clear that there is cross-party support for the bill and that members recognise and appreciate the unique role of local government in Scotland. As I made clear in my opening contribution, it is a sphere of government that we truly and sincerely value and respect.
James Dornan gave a considered address, which reflected the deep engagement and time that the committee has applied to investigating the practical impact and effect of the bill, and the benefits that it could bring if it is passed. I was struck by John Finnie’s remarks about using the opportunity that the bill creates to ensure that local government in Scotland is vibrant and confident. I agree with that aspiration. We should all endeavour to ensure that that is the practical effect of the bill.
On that basis, I do not accept the narrative that was suggested by some Conservative members who contributed to the debate. Let us not forget that theirs is a party that has pursued a damaging and politically motivated agenda of austerity that has negatively impacted on so many of the most vulnerable, and which flies in the face of the claim that somehow Conservatives are the defenders of communities in this country, when it is national and local government that have had to mitigate and mop up the mess that has been left by their Government.
The reality is that we work collaboratively with COSLA and local authorities. That might not fit the narrative of some. Although I concede that we must always do more, I explicitly mentioned in my opening speech the national performance framework, the local governance review and the Islands (Scotland) Act 2018—which was also mentioned by Gordon MacDonald—because those examples demonstrate that we seek to pursue our ambitions on subsidiarity, because they reflect our respect for local government and because outcomes for our people are always better when we work in partnership with local government.
Keith Brown was right to point out that the pandemic has brought us to a pivotal moment. It has meant that local and national Government have had to roll up our sleeves and focus on what needs to be done. That has demanded deeper engagement and partnership, some of which we do not want to lose as we emerge from the pandemic; culture and practice have shifted considerably during the past 10 months, and we want to retain some of that.
That is why COSLA played a full role in the social renewal advisory board, which recently published its report. Local government and the Scottish Government know that, regardless of whether you have “Councillor” before your name or “MSP” after it, we are all here to serve and empower our communities, to make life better and to make society more equal and fairer. That report and its calls for action come 10 years after the Christie report and show that, despite the progress that has been made, there is still much to do to ensure that we can realise the ambitions that are set out in the national performance framework, which is jointly signed up to by local and national Government, and make our aspirations for our communities realisable, tangible and real.
The bill, along with our approaches to community wealth building and a wellbeing economy, will, I hope, help to steer the country into a space that respects localism and subsidiarity and signals a new chapter in our positive relationship with local government.
I am pleased that the committee did not agree that local government in Scotland has been neglected under devolution, but I am conscious that it agreed that there is room for improvement in the relationship between Holyrood and local government. I take the committee’s views seriously and broadly share its aspirations. It is incumbent on all of us in the Scottish Parliament to ensure that a parity of esteem between the various spheres of government is entrenched in how we work.
As we move forward, the Parliament also has a collective responsibility to listen, to work collaboratively and to empower local government. The Scottish Government has demonstrated its commitment to the principle of the charter, and the strong partnership that exists between local and central Government and the collaborative work that is done each and every day as we respond to the current crisis are testament to that.
The passing of the bill will put the strength of that relationship on to a legal footing, and I know that my local government colleagues feel that it will create the conditions and opportunity to strengthen the relationship and engender a more inclusive working partnership.
The real, deep, intense and positive relationship that local and central Government have had during the Covid pandemic has shown how important the strength of our existing relationship is. Together, we have been able to take the practical and swift decisions that have been needed when they have been needed. We must learn lessons from our response to the pandemic and use Mr Wightman’s bill not to threaten legal action where we might disagree, but instead as a springboard to continue meaningful dialogue, understanding of one another’s points of view and, importantly, the essential collaborative work that improves outcomes for and the lives of the people of Scotland.
We are pleased to signal our support for the general principles of Mr Wightman’s bill at stage 1. I again underline our real appreciation for the huge amount of work that he has put in to get us to this stage and the further dialogue that has been enabled for the Parliament to think through what more we need to do to further empower local government and communities.
I call Andy Wightman to close our debate.16:11
I thank all members who have contributed to the debate. I welcome the widespread support and encouragement and the points that have been raised. I will not get drawn into some of the more political contributions, although it is notable that the charter has been a political document. I gently point out to the Conservatives that Conservative Governments from 1985 to 1997 refused to sign the charter, as they regarded it as an interference with the sovereignty of Parliament. However, I know that the Scottish Conservatives have moved on and that they support local autonomy, and I very much welcome that. I also note that the SNP white paper on independence advocated incorporation of the charter, and I welcome the fact that we will now be able to do that.
Most European countries do not need to do what I propose that we do in the bill. That is either because they have constitutional protections for local government, such as in Germany, where article 28 of the constitution guarantees political and fiscal autonomy, or because they have a monist legal system, which means that international law to which they are a signatory automatically becomes part of domestic law.
As a number of members have pointed out, however, the UK as a whole remains a very centralised state and Scotland, too, has one of the most centralised and concentrated systems of local government. In that regard, I was struck by a comment that was made in oral evidence by Councillor Malcolm Bell, the leader of Shetland Islands Council. He said:
“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.”—[Official Report, Local Government and Communities Committee, 18 November 2020; c 33.]
A number of members talked about the practical impact of the bill, including James Dornan as convener of the Local Government and Communities Committee. It is important to stress that this is principally about a culture change. John Finnie talked about heightened awareness, and it is awareness that the charter articles are law that will, I hope, improve policy making and dialogue between central and local government.
The bill will not in and of itself fix the various issues with local government that members have mentioned, but I hope that the Government will have to think carefully about whether, for example, we are indeed complying with article 9.3, on financial resources. The Council of Europe has established no judicial oversight mechanism in relation to the charter, apart from monitoring missions to member states. In 2014, the monitoring mission noted a number of positives, but also, for example, a failure to comply with article 2, on incorporation, which the bill addresses.
Alexander Stewart talked about financial powers, which is the subject of one of the main political debates that we have in Parliament about the powers of local government. Article 9 and its various sub-articles address that quite well.
The Faculty of Advocates noted issues with article 4, and Alex Cole-Hamilton mentioned his former colleague Tavish Scott arguing for a power of general competence. That is indeed a legal obligation under article 4.2.
Professor Himsworth told the committee that current arrangements for local taxation and rate-setting powers are “pretty precarious” in terms of compliance with article 9.3.
Members have hinted that the articles are drafted in broad terms and that the courts might have difficulty interpreting them. Of course, they were negotiated as broad articles so that they would be acceptable to 47 countries with very different constitutional and democratic traditions.
Unlike its more famous cousin, the European convention on human rights, which has a judicial mechanism built into it, the charter does not. There has been very little litigation in Europe on the charter. If any dispute arises—as it no doubt will in due course—and ends up in the Scottish courts, they will have the task of doing what they do day in, day out, which is interpreting statute and the articles. I am confident that, over time, the Scottish courts will have no problem in doing that.
Alison Harris mentioned low turnouts at elections. Across Europe, countries have turnouts as high as 80 per cent in many cases. Where local government has power, people take note, they participate and they benefit. David Torrance reminded us of the ancient history of local government—Kirkcaldy’s council was founded in 1582. I welcome Stewart Stevenson’s backhanded compliment, and I commend him for his astute and perceptive analysis. Rhoda Grant was right to highlight the state of local government in the Highlands, with Highland Council being a very large authority and Orkney Islands Council being a very small authority. Sarah Boyack hinted that the bill is an opportunity for a reset of relationships.
Members’ bills take quite a bit of effort, and I would like to thank my staff, Charlotte Maddix and Gillian Mackay, for their hard work and support over the past three years.
In January 2020, the Parliament voted to fly the flag of the Council of Europe outside this chamber, in recognition of the UK’s continued membership of the council and the Parliament’s commitment to human rights, democracy and the rule of law. Let us vote tonight to deliver the aspiration of campaigners for devolution and to join the rest of Europe and incorporate this important treaty into Scots law.