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

– in the Scottish Parliament on 23rd March 2021.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.

In dealing with the amendments, members should have before them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that the division bell will sound and proceedings will be suspended for five minutes for the first division, and that the period of voting for each division will be one minute. If a member wishes to speak on any group, they should press their request-to-speak button as soon as I call that group.

The Presiding Officer:

Group 1 is on the meaning and interpretation of the charter articles. Amendment 1, in the name of Andy Wightman, is grouped with amendments 2 to 5. I remind members that, if amendment 2 is agreed to, I will not be able to call amendment 3, as it will have been pre-empted.

Photo of Andy Wightman Andy Wightman Independent

I should say in advance that I will take a little time in speaking to the amendments in group 1 because, although they are relatively minor in certain ways, they embody some fairly important principles about how Parliament operates.

The purpose of the bill is to incorporate into Scots law the main provisions of an international treaty. It does that by creating as direct a link as possible between the law in Scotland, including the duties of ministers and the rights of those who may wish to challenge their actions and decisions, and the text of the charter itself.

Section 1(3) of the bill allows ministers, subject to oversight by Parliament, to update the act through regulations to reflect any

“amending or additional protocols” that may have been

“signed by the United Kingdom”.

The key point is that control remains in Scotland. It would be up to the Scottish Government and, ultimately, the Parliament to decide whether to further amend Scots law to keep pace with any changes that are made by the Council of Europe or that the UK has signed up to. Scotland could take its lead from the UK Government or decide to leave things as they are. It would be our choice.

Section 1(2A) of the bill, which was added at stage 2 by a Government amendment, sits uneasily, in my view, with the pre-existing provisions in section 1. Subsection (2A) might be described as an automatic keeping pace provision that requires the courts to read all the main provisions of the bill through the lens of whatever reservations, declarations and so on the UK Government makes at any time. The effect is that if the UK Government changes its approach to the charter formally, by means of an international legal instrument, Scots law will change automatically, regardless of whether the Scottish Government of the day—or the Parliament—thinks that that is a good idea.

I did not get much notice of the Government’s stage 2 amendment that added subsection (2A), but I have reflected on it carefully since then. I recognise the benefit of including in the bill mechanisms to allow the resulting act to keep pace not just with changes at Council of Europe level, such as the adoption of new protocols, but with changes in the UK’s position that are expressed through a legal instrument such as a declaration or denunciation. However, I continue to believe that keeping pace should be done manually rather than automatically, so that it is always the result of decisions that are taken here in Scotland.

That is why I lodged amendment 5, which would extend section 1(3) to enable the regulation-making power to be used to reflect not just amending or additional protocols but UK legal instruments, such as declarations, which are the recognised means by which a state party can fine-tune its adherence to international treaties that it has signed and ratified. If the manual keeping pace mechanism in section 1(3) is extended, it will no longer be necessary to retain the alternative, automatic keeping pace mechanism that was added at stage 2—that is, section 1(2A)—so my amendment 2 is consequential to amendment 5 and would remove subsection (2A).

Amendment 3, in the name of the cabinet secretary, adjusts the wording in subsection (2A) so that it reflects the language of the charter in describing the ways in which signatory states can fine-tune their adherence to the charter, as well as the language of the Vienna Convention on the Law of Treaties, which specifies how states can fine-tune their adherence to treaties more generally. If I had not lodged amendment 5, which provides an alternative to subsection (2A), I would have no objection to amendment 3. However, it is unnecessary, given that the same language is included in my amendment 5.

At stage 2, the cabinet secretary gave two reasons for adding subsection (2A). The first was that it takes account of two declarations that the UK made when it ratified the charter in 1998. I agree that the two declarations are important. One makes it clear that the UK considers itself to be bound by all the articles that make up part 1 of the charter. That is significant, because under article 12 member states may choose to be bound by only some of part 1. The articles that the UK has said that it will be bound by are articles 2 to 11—the articles that are being given effect by the bill. The other declaration defines the application of the charter in the various countries of the UK and in particular makes it clear that in Scotland it applies to the 32 local authorities that are constituted under section 2 of the Local Government etc (Scotland) Act 1994.

I agree that there is a case for taking account, in the bill, of those two UK declarations, so I propose that we write them into the definition of “the Charter Articles”. That would be the effect of amendment 1.

The cabinet secretary’s second reason for adding subsection (2A) was to avoid the risk of the bill being challenged, either under section 35 of the Scotland Act 1998 or on the ground of legislative competence. I do not agree with the Scottish Government’s assessment of the risks. No Scottish Parliament bill has ever been challenged under section 35 of the Scotland Act, which gives the secretary of state the power to block a bill from being submitted for royal assent, and I have seen no indication that the UK Government is contemplating using that power in this instance or indeed that the UK Government has expressed concerns about the bill’s compatibility with

“international obligations or the interests of defence or national security”.

I, along with the people who have assisted me, have thoroughly reviewed subsection (2A), and we do not consider that it is needed from a legislative competence perspective. I note that the Presiding Officer assessed the bill’s provisions as being within the Parliament’s legislative competence when it was introduced.

Even if there were a theoretical risk of challenge to the bill, such a risk would be better managed through the manual keeping pace provisions that I propose rather than through the automatic mechanism that the Government prefers. My proposed approach would enable necessary adjustments to the legislation to be made, should the need arise, while keeping the decision making here in Scotland, where it should be.

Having said all that, I have had discussions with the Government in recent days, and I am conscious that it takes a different view. I fully expect the cabinet secretary to set out that view, so I will listen carefully to what she says before I decide whether to press amendment 1 and move the other amendments in my name in this group.

I move amendment 1.

Photo of Aileen Campbell Aileen Campbell Scottish National Party

Amendment 3, in my name, is necessary to clarify the effect of section 1(2A). It will extend subsection (2A) to require the charter articles to be read subject not only to any

“reservations, objections or interpretative declarations”, but to any

“undertakings, notifications or denunciations” by the UK as may be in force.

I am afraid that the Government cannot support amendments 1, 2, 4 and 5, in the name of Andy Wightman. I have a lot of sympathy with the policy intention behind the amendments, and particularly with Mr Wightman’s point about wanting Scotland to take decisions that impact on Scotland but, unfortunately, there are issues that prevent the Government from agreeing with his proposed approach.

For the bill to be accurately described as an incorporation bill, it requires to mirror the UK’s international obligations in relation to the charter. That includes any declarations, reservations, undertakings, denunciations, interpretative declarations and the like that are made by the UK under the charter articles and general international law, now and in the future.

The effect of Mr Wightman’s amendments is essentially to provide for a manual mechanism, as he said, for keeping pace with any changes that are made to the UK’s international obligations, instead of the automatic mechanism, as provided for under the current section 1(2A). In order to remain aligned with the charter as it applies to UK and international law, it would be necessary to operate that manual mechanism every time the UK made a declaration or any other change. The Scottish ministers are committed to upholding international law and could not deliberately decline to reflect the accurate international legal position in a bill such as this one.

Mr Wightman’s amendments would also mean that there could still be a potential disconnect between the charter as incorporated by the bill and the charter as it—

The Presiding Officer:

Cabinet secretary, I am very sorry to do this, but I am afraid that we have lost the virtual chamber. It is not your doing at all—it is a technical fault. The same thing happened recently. However, because half the chamber can no longer hear what is happening, I am going to have to suspend proceedings for a few moments, until we work out what is happening.

16:20 Meeting suspended.

16:35 On resuming—

I apologise for the technical problem—broadcasting is now back. As we lost the broadcast only for 30 seconds, I ask the cabinet secretary to pick up from where she left off.

Photo of Aileen Campbell Aileen Campbell Scottish National Party

I hope that I am at the right bit.

Mr Wightman’s amendments would also mean that there would still be a potential disconnect between the charter as incorporated by the bill and the charter as it exists as an international treaty and a set of international obligations to which Scotland, as part of the UK, is subject. Under Mr Wightman’s proposals, Scotland would potentially remain subject to both the charter as incorporated by the bill and the charter as it exists as an international treaty, although only the charter as incorporated by the bill would be legally enforceable at domestic level. That could cause confusion for ministers, local authorities and the courts. It is important to ensure that the legislation is clear and that there is no confusion as to how it might be used and interpreted in the future. Behind all of that, there is still a risk that the secretary of state could deploy his power under section 35 of the Scotland Act 1998 to prevent the bill from being submitted for royal assent.

Section 1(2A), as amended by amendment 3, is also consistent with the position adopted in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and other pieces of legislation. I am aware that Andy Wightman does not agree with our assessment of the position. I reassure him that such was our sympathy with his amendments that we fully explored the possibilities. However, we cannot see a way to support the purpose of his amendments without legal risk. Therefore, I ask members to agree to amendment 3, in my name, and not to agree to amendments 1, 2, 4 and 5, in the name of Andy Wightman.

Photo of Andy Wightman Andy Wightman Independent

Those were helpful comments from the cabinet secretary. The issue arises as a consequence of the two bills before Parliament—the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which was passed last week, and my bill. I think that they are the first two Scottish Parliament bills to incorporate international treaties. The policy intention of my bill is that, if Scotland wishes to be bound by the charter as it currently exists and as ratified by the UK, even if the UK decided in five years’ time to renounce articles 5, 6 and 7, Scotland would still be bound by those articles—they would remain part of Scots law and would be judiciable. That same argument applies to the UNCRC bill and would apply to any other bill that sought to incorporate international instruments.

It is a devolution issue—although that is perhaps a technical term—whereby there is an inherent risk if the Scottish Parliament decides to incorporate treaties and not have an automatic keeping pace power. That is not a good situation to be in, but I accept the cabinet secretary’s assessment of the risk, although I take different view. The matter needs to be considered and clarified, and, if necessary, the devolution arrangements need to be modified to better enable the Scottish Parliament to decide by which international treaties and their parts it wishes to be bound.

I seek to withdraw amendment 1.

Amendment 1, by agreement, withdrawn.

Amendment 2 not moved.

Amendment 3 moved—[Aileen Campbell]—and agreed to.

Amendments 4 and 5 not moved.

The Presiding Officer:

Group 2 is on scrutiny of regulations under section 6(1). Amendment 6, in the name of Andy Wightman, is the only amendment in the group.

Photo of Andy Wightman Andy Wightman Independent

Amendment 6 does two things. First, it refines the wording of section 6A(6), which is one of two subsections to section 6A that were added by Scottish Government amendments at stage 2. The amendment will ensure consistency of language between subsections (5) and (6) and will mean that both refer to compliance and/or non-compliance, rather than the current situation in which subsection (5) refers to

“Failure to comply with the requirement” and subsection (6) refers to “breach of the requirement”.

The second change relates to the mechanism that was added by a Scottish Government amendment at stage 2 to enable the Scottish ministers to dispense with the additional 60-day pre-laying period that will normally be required for regulations that are made under section 6(1). New subsection (6) will enable ministers to do that so long as they provide an explanation to the Presiding Officer. The new subsection appears to have been modelled on section 31(3) of the Interpretation and Legislative Reform (Scotland) Act 2010. My amendment 6 requires that the explanation that is provided

“must be given in writing as soon as practicable after the instrument is laid”.

In doing so, it replicates the next subsection in the 2010 act—section 31(4)—and is a worthwhile addition to the mechanism that was added by the Government at stage 2.

I move amendment 6.

Photo of Aileen Campbell Aileen Campbell Scottish National Party

Amendment 6 is a technical amendment that will improve the language that is used in section 6A(6). The amendment also makes it clear that, if the Scottish ministers lay a draft Scottish statutory instrument before the expiry of the additional 60-day laying period, as is required by section 6A(3), the explanation that they give to the Presiding Officer must be “in writing” and given “as soon as practicable” after the draft SSI is laid. Therefore, the Government wishes to indicate its support for amendment 6.

The Presiding Officer:

Does Mr Wightman wish to make any further comments?

The Presiding Officer:

That ends consideration of amendments.

As members will be aware, at this stage in proceedings, I am required under the standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system or the franchise for Scottish Parliament elections. In my view, it does not, so the bill does not require a supermajority to be passed at stage 3.

I suspend proceedings for a minute before we move to the debate on the motion to pass the bill.

16:42 Meeting suspended.

16:43 On resuming—