Official Report 847KB pdf
The next item of business is a debate on motion S6M-20525, in the name of Mark Ruskell, on a motion on reconsideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
I would be grateful if members who wish to speak in the debate were to press their request-to-speak buttons. I call Mark Ruskell, the member in charge of the bill, to speak to and to move the motion.
17:08
I am happy to move the motion to enable the reconsideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Some members may be surprised to hear me speak to a second member’s bill, just days after seeing my Greyhound Racing (Offences) (Scotland) Bill through stage 1, so a little explanation is perhaps required, especially for members who were not present in session 5.
The Euro charter bill, as I call it, was introduced by Andy Wightman in May 2020, and it passed stage 3 on 23 March 2021, shortly before dissolution.
The bill incorporates the European Charter of Local Self-Government into Scots law. The fundamental purpose of incorporation is to strengthen the standing of local government in the democratic governance of Scotland through a range of measures relating to the Scottish ministers, the courts and this Parliament.
The bill was widely supported on a cross-party basis. I pay tribute to Andy Wightman for seeking to elevate the status of local government at a time when concerns about the centralisation of decision making in Edinburgh were rife and the Verity house agreement had yet to be signed.
In summary, the bill places a duty on the Scottish ministers to act compatibly with the charter and to promote self-government. The bill requires the courts to give effect to legislation in a way that is compatible with the charter. It also enables them to declare legislative provisions to be incompatible with the charter and require the Scottish ministers to take remedial action, as well as giving them powers in relation to decisions of Scottish ministers that breach their duties under the charter. Finally, the bill says that bills introduced in the Parliament need to be accompanied by a statement on their compatibility with the charter.
Following stage 3, the bill, together with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, was referred to the United Kingdom Supreme Court by the Attorney General and the Advocate General for Scotland under section 33(1) of the Scotland Act 1998. In October 2021, the Supreme Court found that the referred provisions were outside the Scottish Parliament’s legislative competence.
The two bills were drafted differently and, therefore, the issues before the court were slightly different, but the key question on the Euro charter bill was whether the bill conferred powers on the courts to interpret and scrutinise the legality of legislation passed by the sovereign UK Parliament and whether that modified the effect of section 28(7) of the Scotland Act 1998, which states that the conferral of power on the Scottish Parliament
“does not affect the power of the”
UK Parliament
“to make laws for Scotland.”
The first provision in question was section 4(1A) of the Euro charter bill. Section 4(1) provides that legislation referred to in section 4(1A) must be
“read and given effect in a way which is compatible with the Charter”.
The Supreme Court ruled that that would sometimes require the courts to modify the meaning and effect of acts of the UK Parliament, which would produce results that the UK Parliament did not intend. Accordingly, the court decided, for the same reasons as applied to the similar section 19(2)(a)(ii) of the UNCRC bill, that section 4(1A) of the Euro charter bill would be outside the legislative competence of this Parliament.
The second provision of this bill that was in question was section 5(1), which confers on the courts the power to declare that a provision of an act is incompatible with the charter. For the same reasons as applied to the similar section 21(5)(b)(ii) of the UNCRC bill, the court decided that section 5(1) of the Euro charter bill would affect the power of the UK Parliament to legislate for Scotland, because it would modify section 28(7) of the Scotland Act 1998, so it fell outside the legislative competence of the Scottish Parliament.
If members in the chamber are still with me, we will move to session 6. With Mr Wightman not being returned as an MSP, the responsibility fell to me, as the designated member now in charge of the bill, to decide whether to move towards a reconsideration stage.
Will the member take an intervention?
If there is time in hand, I will.
There is a little.
I am grateful to Mark Ruskell for taking the intervention and explaining the anomaly that we face. There are proposals with regard to how the bill, if the motion is agreed to this evening, can be rectified, but does he agree that the parliamentary process does not involve quite the same questions as confronted us with the UNCRC bill? There will have to be careful consideration of how we propose to amend this bill so that, if it comes back, we do not find ourselves in a horrible roundabout that takes us back to where we were.
I agree with the member on that. Clearly, a long time has elapsed, and there have been considerable conversations as well as consideration by both Governments about what would be a legally robust way forward. I look forward to hearing the cabinet secretary’s comments later in the debate, but I think that we have enough time to process the bill efficiently towards a reconsideration phase.
In May 2022, John Swinney gave a statement to Parliament with an update on next steps following the judgment. He said that, although the Euro charter bill was a member’s bill, the Scottish Government remained committed to supporting it. Since then, my approach as the designated member has been to respect the will of the Parliament that was expressed in session 5 and to allow the Scottish and UK Governments the opportunity to resolve the issues at the heart of the Supreme Court judgment.
During session 6, I have kept the opportunity to fix the bill open, and I have liaised with both the Scottish Government and the Convention of Scottish Local Authorities throughout.
In October 2024, the Scottish Government confirmed that it would lodge and speak to the necessary amendments, given its experience with the 2023 bill reconsideration stage.
Under standing orders, only the member in charge of a bill may propose that the Parliament reconsider a bill following a reference to the Supreme Court. I have lodged the motion to do so, which we will consider today. I urge members to vote for the motion so that we can allow amendments to be made and so that the bill can, I hope, be agreed to again and move towards royal assent.
I thank the cabinet secretary for engaging with me on the bill. As I said, it has taken a long time to get to this point. I am aware that there are many bills up for debate at this late stage of the parliamentary session, but I hope that it will be a relatively easy and efficient process to get the bill back over the line to the satisfaction of all who are concerned and that there will be no further delay.
I move,
That the Parliament agrees to reconsider the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
17:15
I am pleased to contribute to the debate following the opening remarks from Mark Ruskell, who is the member in charge of the bill. I pay tribute to him for the constructive engagement that we have had.
The Scottish Government remains committed to the European Charter of Local Self-Government (Incorporation) (Scotland) Bill and to the charter’s principles. That sits alongside the Verity house agreement and the explicit commitment by ministers to support Mark Ruskell to progress this member’s bill to reconsideration stage as soon as possible.
Our offer of practical support was informed by our experience of the first bill to proceed to reconsideration stage in the Scottish Parliament. That is now the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
As the Parliament will be aware, the European Charter of Local Self-Government (Incorporation) (Scotland) Bill was the second of two bills that were referred to the Supreme Court and found to be outwith the Scottish Parliament’s legislative competence by it. In my letter to Mark Ruskell last month, which was published by the Local Government, Housing and Planning Committee, I confirmed that, if the Parliament agrees to reconsider the bill, the Scottish Government will lodge and speak to the amendments that we deem to be necessary, drawing on our previous experience of supporting a bill’s progress through reconsideration.
If the Parliament agrees to Mr Ruskell’s motion, I intend to lodge amendments as soon as possible that will be designed to achieve three things. First, the amendments will retain as much of the bill’s original purpose and practical effect as possible. Secondly, the amendments will clearly frame the applicable duties and remedies in the bill within the boundaries of devolved competence, in order to address the findings of the Supreme Court judgment. Thirdly, and crucially, the amendments will minimise the possibility of a further Supreme Court referral.
My officials have been engaging constructively with UK Government officials for a period of time, sharing draft proposals and pursuing a co-operative dialogue on the implications of the Supreme Court’s judgment for the bill’s key operative provisions. That engagement and the process of developing amendments has once again highlighted the challenging practical effect of the restrictions on the Scottish Parliament’s scope to legislate that result from section 28(7) of the Scotland Act 1998. That section states that the power of the Scottish Parliament to make laws for Scotland
“does not affect the power of the Parliament of the United Kingdom”
to do so. Discussion of the implications of the Supreme Court judgment continues, and we expect further academic and stakeholder commentary on the matter.
Although the amendments that I intend to lodge would limit the legal impact of the bill to some extent, it should be remembered that the Verity house agreement, although not legally binding, already commits ministers to act consistently with many of the charter’s principles. Those include subsidiarity and
“a presumption in favour of local flexibility”,
using language that was drawn directly from the charter. The agreement has already helped to realise many of the aspirations of the charter by strengthening and framing the relationship between our two spheres of government and setting out how we will work together to better deliver improved outcomes for the people of Scotland.
The agreement also committed ministers to ensuring that local government has greater flexibility to tailor solutions to meet local needs. By the end of this parliamentary session, we will have baselined more than £2 billion of the general revenue grant, jointly published a fiscal framework with COSLA, completed the local governance review, taken forward short-term action to enhance the ability of councils to innovate, meaningfully progressed work towards a power of general competence, introduced new revenue-raising powers and commenced groundwork to support future council tax reform.
Reconsideration of the bill is the logical next step to enshrine that existing good practice in law. Crucially, COSLA, as the key local government representative organisation in Scotland, supports the amendments that I intend to lodge; it shares the priority of completing reconsideration in this session of Parliament and avoiding a further referral. I put on record my thanks to COSLA for all the work that it has done in this area so far.
Agreeing to the motion to reconsider the bill is the necessary first step to allow Parliament to scrutinise and decide on my amendments. I invite members to support Mark Ruskell’s motion so that we can, before the end of this session of Parliament, deliver a bill that remains faithful to the charter’s purpose, is workable in practice and strengthens local self-government in Scotland.
17:20
I am pleased to speak on the motion to allow the Parliament to reconsider the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
As the closest level of government to communities, it is right that councils, and elected councillors, are given the powers to act in the best interests of local residents. The Scottish Conservatives will therefore support the motion, so that Parliament can consider which amendments are needed to bring the bill within this Parliament’s legislative competence.
It is regrettable that the Parliament has had to wait so long for progress to be made. It is notable that more than 1,000 days have passed since the Supreme Court delivered its judgment in October 2021. Further, almost exactly a year ago, the Government said that it was working on the bill and that reconsideration would take place as soon as practical. It is only now, with just two months remaining before the end of this session of Parliament, that we have got to this point. However, I am glad that we have done so.
I would like to reflect on how the political debate around local government has developed since the Parliament debated the bill at stage 3, which is nearly five years ago. COSLA has long supported the principles behind the bill, but it has also indicated that local government is facing a “dire financial situation.”
In 2023, the Verity house agreement was published, which aimed to strengthen the Scottish Government’s working relationship with councils. Many of the principles in the agreement can be welcomed, but too much of what is in it has yet to become a reality, and councils are frustrated with the lack of progress so far. It was never intended that the agreement would have any legislative backing, but its principles draw on the European Charter of Local Self-Government. I hope that we can see genuine progress on the relationship between local and central Government, which the Scottish Government has been promising for years.
There is very limited time remaining in the current session of Parliament to reconsider the bill. I hope that the Government can work with Mark Ruskell to progress matters. It is right that the bill progresses to reconsideration stage, but the Government still has much more work to do if it is to regain the trust of local government.
17:23
The bill has always had a simple and widely supported purpose: to incorporate the European Charter of Local Self-Government into Scots law. In practice, that means giving local authorities clear legal rights, requiring the Scottish ministers to act in line with the charter and ensuring that Scotland meets the democratic standards that are expected across Europe. It will strengthen local autonomy, improve transparency and allow councils to challenge actions that undermine their role. This was never a constitutional provocation; it was a practical measure to protect and empower local democracy. The Supreme Court did not strike down that purpose; it struck down the drafting.
The then Deputy First Minister promised in May 2022 to work at pace to lodge amendments. He promised engagement with COSLA and with Parliament, but, since that statement, nothing of substance has happened—no amendments, no timetable and, seemingly, no progress.
COSLA’s briefing to its own convention in March 2023 highlighted the lack of apparent progress and urged early ministerial engagement. COSLA seemed to be doing everything that it could. The only thing missing was meaningful action from the Scottish Government, which seems to be a pattern.
Local government has become an afterthought for this Administration—not a partner, but the body that is expected to administer cuts, absorb blame and take the flak when services are hollowed out.
The much-lauded Verity house agreement, once heralded as bringing in a new era of respect, lies in complete tatters, abandoned the moment its political usefulness expired. Over the past decade and more, councils have faced cuts of around £7 billion, and they are left carrying an unsustainable financial burden. That is not just my view or that of my Scottish Labour colleagues—Scottish National Party councillor Ricky Bell, who is COSLA’s spokesperson for resources, has warned that
“local government finances are under severe and growing strain.”
He went on to say that councils have already delivered
“significant savings year on year”
and that
“there is a clear limit to what can be achieved without impacting the services communities rely on.”
He said that reliance on reserves and borrowing is
“not a sustainable long-term solution”,
and that the medium-term outlook is for
“continued de-prioritisation and the prospect of significant real-terms cuts.”
The SNP councillor’s conclusion is that
“Urgent action is needed”.
The bill was universally supported. Passing it promptly should have been the easy part, yet the Government managed to turn that consensus from years ago into delay—six years of it. Local government deserves better, and Scotland deserves better. Today, at long last, we have the chance to put that right, without excuses or constitutional theatre and with the respect that our councils and communities are owed.
17:26
I welcome the opportunity to speak on behalf of the Liberal Democrats in support of the motion. I was one of the original signatories to Andy Wightman’s bill in the previous session of the Parliament. At its heart, the bill is about a simple idea: that the power to make decisions that affect communities should always sit as close as humanly possible to the people whom those decisions serve.
Too often, under successive SNP Administrations, power in Scotland has gone the other way. It has become too centralised, and local government has been treated less like a democratic partner and more like a delivery arm for the Scottish Government. We have heard a lot about the Verity house agreement, but it has had a coach and horses driven through it several times. I therefore welcome the motion, and the signal from the cabinet secretary of the Government’s support.
As we have heard, the Parliament passed the bill back in 2021, and it had strong cross-party backing. Since then, we have had the Supreme Court judgment, which was clear that certain provisions, particularly sections 4 and 5, went beyond the limits of the Parliament’s power in how they interacted with United Kingdom legislation.
The reconsideration stage gives us a chance to finally respond to that judgment responsibly, but without losing sight of what the bill is trying to achieve. The proposed amendments to the bill do just that. They are focused and proportionate, and they closely follow the approach that the Parliament took in its reconsideration of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. Although it is regrettable that, by necessity, the amendments will narrow the scope of the legislation somewhat, it is still a big improvement on not having the legislation enacted at all and, clearly, we cannot proceed with another bill that might not be competent.
I acknowledge the decision to amend section 2. I understand the reluctance to narrow its scope and I share the frustration that that creates, particularly among our council colleagues, but it is right to be honest about the risk of further legal challenge. Another referral to the Supreme Court would help no one, least of all local government, which has already waited long enough for the bill to progress. What is important is that the bill still marks a significant step forward. It embeds the principles of the European charter into Scots law and strengthens the culture of respect, partnership and mutual trust between national and local government.
Agreements such as the Verity house agreement already point us in that direction but, as we have seen over the past few years, the Government can run roughshod over those principles. The motion is not about reopening old arguments; it is about finishing the job properly within our powers and sending a clear signal that the Parliament believes in strong and empowered local government. For those reasons, we will, of course, support the motion.
17:29
I thank members for their contributions, and I thank COSLA and, in particular, those in its political leadership, who have been absolutely relentless over the past four years in driving towards the line and trying to get the bill back over the line. It has been great to work with them. I also thank Roz Thomson from the non-Government bills unit, who has kept the bill on life support over the past five years.
Before returning to Holyrood in 2016, I spent five years as a councillor in Stirling, and it really left a mark on me, with the importance of strong, accountable, empowered local government. It is absolutely critical; it is the level of government that works closest to the people.
Comments have been made about the Verity house agreement. I do not view it as an end point; it is a start, and it has helped to reset the relationship. I agree with Alex Cole-Hamilton and Alexander Stewart that there is a long way to go.
The bill gives us an opportunity to embed the principles further into the work of both the Scottish Government and the Parliament in the next session. I note that the Verity house agreement committed the Government to embed the European charter into law. That is what local government wants, and it is normal across Europe. If we can get the amendments through and get the bill over the line, that is exactly what it will do.
I will make some brief comments about the amendments that the Government will be proposing. Sections 4 and 5, on interpretation and declarations of incompatibility, will be amended to restrict their application to acts of the Scottish Parliament and Scottish statutory instruments. As the cabinet secretary has outlined, the Government amendments will go further than the two sections of the bill as considered by the UK Supreme Court. They will include amendments, under section 2, to the duty on Scottish ministers to act compatibly with the charter.
We have heard that that is being done on the basis that the Scottish Government, through engagement with the UK Government, has not been able to rule out the possibility of a further referral if section 2 is not amended during the reconsideration stage. That is regrettable. I would ask Mark Griffin to reflect on the fact that there has been a conversation between two Governments—a Labour Government and an SNP Government—and I would have preferred those amendments on section 2 not to have been drafted. However, we are where we are. The amendments will reduce the reach and effect of the bill, because much legislation in devolved areas, such as in education, is still contained within the UK legislation.
My priority, as the designated member, is to see the bill pass the reconsideration stage, avoiding any further referral to the UK Supreme Court. COSLA is content with that approach. It is disappointing that it has taken so long to get clarity on that point from the UK Government but, on balance, it is a lot better to have a bill moved to royal assent than for it to be struck down again and to have an uncertain future, dragging into session 7 of the Parliament.
I will end with the words of Andy Wightman, who said in the stage 3 debate five years ago:
“We are strengthening our democracy; in particular, we are strengthening the institution of our system of government that lies closest to the people … so that it might serve them better and more effectively and be more responsive to the wishes of local communities, rather than the political imperatives in Edinburgh.”—[Official Report, 23 March 2021; c 80.]
I agreed with those words then and I agree with them now. I urge members to back the motion for reconsideration of the Euro charter bill.
That concludes the debate on the motion on reconsideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
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