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

In May 2020, I introduced the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. The Local Government and Communities Committee is currently consulting on the Bill as part of the Stage One scrutiny process.

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The vast majority of legislation considered by Parliament is introduced by Scottish Ministers. But Members (and Committees) can also introduce legislation.

In June 2018, I published a draft proposal for a Bill to incorporate the European Charter of Local Self-Government into Scots law. Details of that consultation together with responses are available at www.europeancharter.scot

In May 2020, I introduced the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. The Local Government and Communities Committee is currently consulting on the Bill as part of the Stage One scrutiny process. The deadline for written evidence to be submitted is Thursday 17 September 2020.

What is the Bill about?

The European Charter of Local Self-Government is an international treaty of the Council of Europe, the 47 member body established in 1949 to promote democracy, human rights and the rule of law across the European continent. Perhaps the most well-known treaty of the CoE is the European Convention on Human Rights.

The Charter is an international legal instrument that lays out a set of legal protections for local government. It was opened for signature on 15 October 1985, was ratified by the UK on 24 April 1998 and came into force on 1 August 1998. Further details on the Charter can be found on the CoE website here. Just as with human rights, the CoE carries out monitoring and makes recommendations to its members relating to the principles of the Charter and how they are being implemented in member states. This is undertaken by the CoE’s Congress of Local and Regional Authorities.

Unlike many European countries, the legal systems of the UK are dualist. That is to say, domestic and international law are distinct and separate from one another. In countries with monist systems, international law has the same status as domestic law. So for an international treaty such as the Charter to have legal effect in Scots law, it must be incorporated by an Act of Parliament. Only then can it be admissible (and be applied) in domestic courts.

At its core, that is what this Bill is about. It incorporates the European Charter of Local Self-Government into Scots law and it makes it unlawful for Scottish Ministers to act in a manner which is not compatible with the Charter.

Why does this matter?

The Charter is designed to provide constitutional protections for local government. At the moment, in Scotland and the rest of the UK, such protections are absent for two reasons. Firstly, unlike most countries, the UK does not have a written, codified constitution within which the status and functions of local government would normally be set out. Secondly, because the Charter is not incorporated into Scots law, it is not admissible before the courts. If you believe the Articles have been violated, there is nothing you can do about it.

By incorporating the Charter, the Charter Articles become part of the law of Scotland. Anyone can 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). The Courts will have the power to quash actions of Scottish Ministers and secondary legislation as well as to issue a declaration of incompatibility for primary legislation. The Bill gives legal teeth to the Charter, makes it part of Scots law and means that its provisions can be relied upon to challenge domestic administrative actions and laws.

The intention of introducing this legislation is not to encourage legal actions, but to heighten the awareness of the Charter’s provisions and to ensure compliance with them. To that end, the Bill also places a duty on Scottish Ministers to promote local self-government and to report at least every five years on what they have done to safeguard and reinforce local self-government and increase the autonomy of local councils. The Bill also places a duty on any MSP introducing Bills to Parliament to make a statement about the extent to which, in the view of the MSP, the Bill is compatible with the Charter Articles.

Support for the Bill

Calls for the Charter to be incorporated have been made by the Council of Europe’s Monitoring Missions to the UK, Committees of the House of Commons, COSLA’s Commission on Strengthening Local Democracy and the Scottish Constitutional Convention. COSLA has been campaigning for incorporation of the Charter since 1981 when the draft Charter was then under discussion in the Council of Europe’s Congress of Local and Regional Authorities.

Where Now?

The Bill is currently being scrutinised as part of Stage One scrutiny by the Local Government and Communities Committee. Its consultation closes on 18 September 2020 and you can find more about how to submit your views here.

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