European Charter of Local Self-Government (Incorporation) (Scotland) Bill – Stage 3 update

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The European Charter of Local Self-Government (Incorporation) (Scotland) Bill, a Member’s Bill introduced by Andy Wightman MSP, aims to incorporate the European Charter of Local Self-Government into Scots law.

This blog gives an update on the progress of the Bill in advance of Stage 3, which will take place before the close of Session 5 of the Scottish Parliament on 26 March 2021.

Background

The European Charter of Local Self-Government was opened for signature on 15 October 1985, and is overseen by the Congress of Local and Regional Authorities within the Council of Europe (CoE).

The Council of Europe brings together governments from across Europe and beyond. It is an entirely separate organisation to the European Union. The Council agrees minimum legal standards in many areas, particularly in relation to human rights; democracy and the rule of law. The Council monitors how well countries apply the standards that they have agreed. The Council of Europe includes 47 member states. The UK is still a member now it has left the EU.

To date, the The European Charter of Local Self-Government has been signed by all member states of the Council of Europe, and it is expected that any new states to join the Council would sign the treaty.

The Charter commits signatories to a set of basic rules which seek to uphold the political, administrative and financial independence of local authorities through legislation and, where applicable, constitution. It also sets out that the charter applies to councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage. As a CoE instrument, the Charter does not have a binding effect or a monitoring mechanism.

Part I of the Charter outlines that public responsibilities should be carried out by the authorities closest to the citizens, and that management of particular aspects of public life be controlled at a local authority level. The 11 Articles within Part I of the Charter set out the:

  • Constitutional and legal foundation for local self-government.
  • Concept of local self-government.
  • Scope of local self-government.
  • Protection of local authority boundaries.
  • Appropriate administrative structures and resources for the tasks of local authorities.
  • Conditions under which responsibilities at local level are exercised.
  • Administrative supervision of local authorities’ activities.
  • Financial resources of local authorities.
  • Local authorities’ right to associate.
  • Legal protection of local self-government.

Parts II and III of the Charter set out the responsibilities of each signatory, as well as the legal framework for ratification, territory, denunciation and notification. Article 12 of the Charter decrees that each signatory to the Charter undertakes to consider itself bound by at least 20 of the 30 paragraphs in Part 1 of the Charter, and states that at least ten of these should be taken from a specific set of paragraphs.

Our Stage 1 briefing on the Bill has detail on the ratification of the Charter in Scotland and the UK, and compliance.

Introduction of the Bill

The draft proposal for a Members’ Bill, the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, was lodged by Andy Wightman MSP on 28 June 2018, and a consultation followed.

The European Charter of Local Self-Government (Incorporation) (Scotland) Bill was introduced in the Scottish Parliament on 5 May 2020.

In summary, as set out in the Financial Memorandum, the Bill aims to strengthen the status and standing of local government by incorporating the Charter into Scots law. This includes by 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 Articles.

The Bill:

  • Places a duty on the Scottish Ministers to act compatibly with the Charter Articles.
  • Places a duty on the Scottish Ministers to promote local self-government.
  • Requires the courts to read and give effect to legislation, where possible, in a way that is compatible with the Charter Articles.
  • Enables the Court of Session and UK Supreme Court to declare legislative provisions to be incompatible with the Charter Articles, and enables the Scottish Ministers to take remedial action, by regulations, in response to such declarations.
  • Allows the courts to suspend the effect of a decision that the Scottish Ministers breached a duty imposed on them by the Bill, or remove or limit the retrospective effect of such a decision. This also applies where the court finds that subordinate legislation is incompatible and it is not possible to make a declaration of incompatibility.
  • Requires each person introducing a Public Bill in the Parliament to make a statement about the extent to which, in their view, the Bill is compatible with the Charter Articles.

Stage 1 scrutiny

Local Government and Communities Committee

The Local Government and Communities Committee was assigned as the lead committee in scrutinising the Bill.

After taking evidence in November and December 2020, it published its Stage 1 report on 22 January 2021.

The Committee supported the general principles of the Bill and supported incorporating the Charter in to Scots law. It also, however, drew the Parliamen’t attention to two matters:

First, agreeing to the Bill would not “enshrine” the Charter in the sense of giving it a distinct constitutional status. It would be part of the text of an Act of the Scottish Parliament, capable of being amended in the light of experience, in the same way as the text of any other ASP could be amended. There are also some limitations and mitigations set out in the Bill as to what a court can do when it finds that the Charter has been breached.

Secondly, there is some uncertainty as what the legal impact of incorporating the Charter into domestic law would be, including how frequently it would give rise to litigation, how likely the courts would be to agree that there has been a breach, and what the wider consequences of the finding of a breach could be. Most stakeholders agree with the Member in Charge that litigation would generally be avoided, and this includes local government stakeholders. They think the Bill would not be disruptive but would act more as a spur for local and central government to cooperate effectively, to make better laws and policies, and to avoid conflict. There was also a view that the open-ended and hedged nature of much of the language in the Charter would likely mitigate against a narrow judicial interpretation of what particular provisions “must” mean.

The Committee said that it was “reassured by these views”, but that “The legal reach of the Charter is nonetheless somewhat uncertain”. It concluded:

Therefore, if the Parliament agrees to the Bill, it should do so, in the awareness of a possibility of future cases testing the legal meaning of particular paragraphs in the Charter. There might be some uncertainty, and the possibility of cases with significant consequences, until domestic jurisprudence on the Charter becomes more settled.

Delegated Powers and Law Reform Committee

The Delegated Powers and Law Reform Committee also considered the Bill at Stage 1. In its report, published on 4 December 2020, it made a number of requests and suggestions for clarification.

Stage 2 proceedings

Stage 2 proceedings took place on Wednesday 24 February 2021.

There were 18 amendments in total, 8 were from the Scottish Government, and the remaining 10 were submitted by Andy Wightman. In advance, both Mr Wightman and The Cabinet Secretary for Communities and Local Government wrote to the Committee to explain their submitted amendments, and to express support for one another’s amendments.

The suggested amendments were primarily technical and/or focused on clarifying the issues raised at Stage 1, and supporting the enactment of the Bill.

All amendments and sections were agreed to without division.

Ailsa Burn-Murdoch, Financial Scrutiny Unit