The journey from Our Islands Our Future to the Islands Act

Written by Steven Heddle on 11 July 2018 in Inside Politics

Steven Heddle, former leader of Orkney Islands Council, on how one of the world's first and only place-based laws came to pass

On 30th June the Scottish Government agreed the Islands Bill, legislation hailed by Humza Yousaf, Minister for Transport and the Islands as "unique" as "one of the world's first and only place-based laws".

Although the government was defeated to achieve amendments moved on behalf of the Islands Councils of Orkney, Shetland and the Western Isles, the minister agreed with opposition colleagues that the bill had been strengthened, and the amended bill was passed unanimously. It was received warmly by the three Islands Councils as ‘an historic achievement’.

The new act ensures ‘island proofing’ of policy and legislation from public bodies, a National Islands Plan, variation of council ward sizes to suit islands, protection for the Western Isles as a distinct Scottish constituency, and gives islands councils more powers over marine planning and licensing.

The amendments additionally enable retrospective island proofing of existing legislation and set in place schemes by which island councils can request ministers for devolution of functions and transfer of powers.

It was a conclusion to work that the three councils had started more than 5 years previously by launching their Our Islands Our Future initiative, and which had delivered the Scottish Government prospectus, Empowering Scotland’s Island Communities, and its Progress Update either side of the Independence Referendum. The bill sought to address commitments made requiring legislation.

While the consultation for the bill showed 73 per cent or respondents were in favour of extension of powers to islands councils, the draft bill did not significantly propose this, nor did it include a mechanism proposed by the Islands Councils to enable transfer of powers by secondary legislation on application, so-called ‘permissive powers’.

The government was reluctant to support such permissive powers on the basis that if they could apply to all of local government they should be in the Local Governance Bill. Having made a case for differentiation for decades, the Islands Councils disagreed, citing, as ever, the findings of the Montgomery Committee of 1984, which stated that “opportunities should be taken whenever possible to consolidate, develop and extend the powers of Island Councils in a continuing process of development in the local government of the islands”.

Support from the Rural Affairs and Connectivity Committee led to amendments at stage 2 regarding permissive powers, marine planning, and retrospective application of island proofing to existing legislation, but these were voted down.

The Islands Councils ramped up our arguments to spell out that while island proofing and an Islands Plan would be useful, the bill would be slim pickings if there was no extension of powers to allow the islands to take on responsibilities and run public services in a way appropriate to our geographies and populations. It would be far from transformational and would sell Alex Salmond’s Lerwick Declaration promising transfer of powers short.

This resonated with the opposition, and also with the government who were persuaded to propose amendments at the final stage, allowing delegation of marine planning functions to the Islands Councils alone, rather than as a part of a partnership, and to support retrospective island proofing.

On permissive powers the government continued to argue we should wait for the Local Governance Bill, a proposition shot down in debate by Colin Smyth (Lab), stating: “My response is simply to say that if members support giving more power to our island communities, they should vote to provide those communities with a mechanism to request those powers. We should not wait for a bill that may or may not include such a provision some time in the future, and which Parliament may or may not pass.”

His argument succeeded and paved the way for a further successful amendment by Liam McArthur (LibDem, Orkney), adding the requirements for ministers to make a scheme to take requests for devolution of functions to islands councils, and a scheme for additional powers requests.

The resultant act, which recently received Royal Assent, is now significantly strengthened.

Island proofing as a matter of statute ensures that differential consideration of the impact of legislation or policy on islands from a wide range of public bodies must take place, with decisions in the light of this subject to review by ministers. The retrospective element means that the authorities can apply to review legislation that has affected them adversely, e.g. in relation to recycling, alleviating fuel poverty, education reform or self-directed support. Islands have the opportunity to ensure legislation does not differentially disadvantage them, and seek variation to suit their circumstances.

The Islands Plan is potentially very significant. It can be seen as a strategic approach to ensuring the wellbeing of the islands for islanders and the rest of Scotland alike, with particular consideration given to increasing populations, improving transport services and digital connectivity, protecting the environment, reducing fuel poverty and ensuring the effective management of the Crown Estate, of which more later. Its substance will depend on effective partnership working between the islands councils and the government in its development.

The delegation of functions relating to regional marine plans to the Islands Councils by themselves is crucial to their aspiration to manage marine developments as a one-stop-shop for licensing, leasing, and planning in the interests of their communities.

However the Crown Estate Bill remains a part of the jigsaw here, and any one-stop-shop will require the devolution of the management functions and revenues of the Crown Estate to the Islands Councils, as explicitly referenced by the Smith Commission in its recommendations. The Scottish Government has undertaken to fully implement these recommendations, although the Crown Estate Bill may contradict this is if current restrictions and obstacles remain in place.

The ‘permissive powers’ as mechanisms to enable the transfer of powers to Islands Councils are the most exciting provisions. Most immediately it gives the islands councils tools to pursue their Single Authority aspirations, combining a wider range of services such as Health into a single local public body, with greater scale but greater efficiencies in the local context. Connectivity and housing are also areas where more local control is likely be considered, as well as the maximum extent of control over marine assets.

Such innovation potentially leads the way for local government across the country- at least in some areas, as the islands more than any area recognise that one size does not fit all. However the all purpose authority model that the Islands Councils have followed since their inception in 1975 was more widely adopted in 1996.

More generally, let us hope that this singular event of place-based empowerment can establish a principle of empowerment of local authorities as the democratically elected representatives of the individuals and communities they serve.

Steven Heddle is the former leader of Orkney Islands Council and co-founder of Our Islands Our Future, with Gary Robinson (Shetland Islands Council) and Angus Campbell (Comhairle nan Eilean Siar)

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