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by Jenni Davidson
21 December 2020
In context: European Charter of Local Self-Government (Incorporation) (Scotland) Bill

Scottish Parliament windows - Image credit: Holyrood

In context: European Charter of Local Self-Government (Incorporation) (Scotland) Bill

As the name suggests, the bill would incorporate the European Charter of Local Self-Government into Scots law. That may sound pretty dry, but actually it could be significant in giving councils clearer powers and protecting their status as a separate, autonomous level of government in Scotland. The member’s bill was proposed by Scottish Green MSP Andy Wightman, who aims to strengthen the status and standing of local government

What is the European Charter of Local Self-Government?

The charter was created in 1985 by the Council of Europe (which is separate from the EU, so unaffected by Brexit). It sets out 10 principles to protect the basic powers of local authorities. These relate to the political, administrative and financial independence of councils. The charter has been ratified by all 47 European Council member states. It was signed by the UK in 1997 and ratified in 1998, coming into force on 1 August 1998, but has not been specifically incorporated into Scots law.

What does the charter cover?

The charter covers a number of areas including the election of councillors, councillor pay, local government boundaries, administrative structures and the right to associate, but for Scotland two of the most significant areas are protections for local decision making and local government finances.

The charter says that public responsibilities “shall generally be exercised, in preference, by those authorities which are closest to the citizen” and that local authorities “shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority”. It also states that: “Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.”

On finances, 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 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”.

Any measures taken to correct the effect of unequal resources between councils must not “diminish the discretion local authorities may exercise within their own sphere of responsibility” and “as far as possible, grants to local authorities shall not be earmarked for the financing of specific projects.”

COSLA has been dogged in its support for the principles contained within this bill because they will strengthen the status and standing of local government in Scotland and thereby increase the involvement of local people in shaping the communities in which they live

What difference would the bill make?

It would allow policy that is incompatible with the charter to be challenged in court if necessary. It should protect councils from too much centralisation and unfair cuts or central control over their finances and give local government more status, as it has in many other European countries. The bill places a duty on the Scottish Government to act compatibly with the charter and to promote local self-government; it requires anyone introducing a bill in the Scottish Parliament to make a statement about the bill’s compatibility with the charter; and it enables the courts to declare legislation to be incompatible with the charter.

Is it likely to be passed?

Yes. Initially Wightman had the support of the other opposition parties in the Scottish Parliament and COSLA, but it was unclear whether the bill would get the support of government. However, communities secretary Aileen Campbell announced at the end of November that the Scottish Government would be backing the bill too.

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