New Clause
33
Incorporation
of the European Charter of Local
Self-Government
‘(1) In this
Act “the Articles” means the provisions set out in
Articles 2 to 11 of the European Charter of Local
Self-Government.
(2) Those
Articles are to have effect for the purposes of this
Act.
(3) The Articles are set
out in Schedule [Articles 2-11 of the European Charter of Local
Self-Government].’.—[Tom
Brake.]
Brought
up, and read the First
time.
Tom
Brake:
I beg to move, That the clause be read a Second
time.
The
Chairman:
With this it will be convenient to discuss new
schedule 1— Articles 2 to 11 of the European Charter of Local
Self-Government—
Article
2—Constitutional and legal foundation for local
self-government
The
principle of local self-government shall be recognised in domestic
legislation, and where practicable in the
constitution.
Article
3—Concept of local
self-government
1
Local self-government denotes the right and the ability of local
authorities, within the limits of the law, to regulate and manage a
substantial share of public affairs under their own responsibility and
in the interests of the local
population.
2
This right shall be exercised by councils or assemblies composed of
members freely elected by secret ballot on the basis of direct, equal,
universal suffrage, and which may possess executive organs responsible
to them. This provision shall in no way affect recourse to assemblies
of citizens, referendums or any other form of direct citizen
participation where it is permitted by
statute.
Article
4—Scope of local
self-government
1
The basic powers and responsibilities of local authorities shall be
prescribed by the constitution or by statute. However, this provision
shall not prevent the attribution to local authorities of powers and
responsibilities for specific purposes in accordance with the
law.
2
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.
3
Public responsibilities shall generally be exercised, in preference, by
those authorities which are closest to the citizen. Allocation of
responsibility to another should weigh up the extent and nature of the
task and requirements of efficiency and
economy.
4
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.
5
Where powers are delegated to them by a central or regional authority,
local authorities shall, insofar as possible, be allowed discretion in
adapting their exercise to local
conditions.
6
Local authorities shall be consulted, insofar as possible, in due time
and in an appropriate way in the planning and decision-making processes
for all matters which concern them
directly.
Article
5—Protection of local authority
boundaries
Changes
in local authority boundaries shall not be made without prior
consultation of the local communities concerned, possibly by means of a
referendum where this is permitted by statute.
Article 6—Appropriate
administrative structures and resources for the tasks of local
authorities
1
Without prejudice to more general statutory provisions, local
authorities shall be able to determine their own internal
administrative structures in order to adapt them to local needs and
ensure effective
management.
2
The conditions of service of local government employees shall be such
as to permit the recruitment of high-quality staff on the basis of
merit and competence; to this end adequate training opportunities,
remuneration and careers prospects shall be
provided.
Article
7—Conditions under which responsibilities at local level are
exercised
1
The conditions of office of local elected representatives shall provide
for free exercise of their
functions.
2
They shall allow for appropriate financial compensation for expenses
incurred in the exercise of the office in question as well as, where
appropriate, compensation for loss of earnings or remuneration for work
done and corresponding social welfare
protection.
3
Any functions and activities which are deemed incompatible with the
holding of local elective office shall be determined by statute or
fundamental legal
principles.
Article
8—Administrative supervision of local authorities’
activities
1
Any administrative supervision of local authorities may only be
exercised according to such procedures and in such cases as are
provided for by the constitution or by
statute.
2
Any administrative supervision of the activities of the local
authorities shall normally aim only at ensuring compliance with the law
and with constitutional principles. Administrative supervision may
however be exercised with regard to expediency by higher-level
authorities in respect of tasks the execution of which is delegated to
local
authorities.
3
Administrative supervision of local authorities shall be exercised in
such a way as to ensure that the intervention of the controlling
authority is kept in proportion to the importance of the interests
which it is intended to
protect.
Article
9—Financial resources of local
authorities
1
Local authorities shall be entitled, within national economic policy,
to adequate financial resources of their own, of which they may dispose
freely within the framework of their
powers.
2
Local authorities’ financial resources shall be commensurate
with the responsibilities provided for by the constitution and the
law.
3
Part at least of the financial resources of local authorities shall
derive from local taxes and charges of which, within the limits of the
statute, they have the power to determine the
rate.
4
The financial systems on which resources available to local authorities
are based shall 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.
5
The protection of financially weaker local authorities calls for the
institution of financial equalisation procedures or equivalent measures
which are designed to correct the effects of the unequal distribution
of potential sources of finance and of the financial burden they must
support. Such procedures or measures shall not diminish the discretion
local authorities may exercise within their own sphere of
responsibility.
6
Local authorities shall be consulted, in an appropriate manner, on the
way in which redistributed resources are to be allocated to
them.
7 As
far as possible, grants to local authorities shall not be earmarked for
the financing of specific projects. The provision of grants shall not
remove the basic freedom of local authorities to exercise policy
discretion within their own
jurisdiction.
8 For the purpose of borrowing
for capital investment, local authorities shall have access to the
national capital market within the limits of the
law.
Article 10—Local
authorities’ right to
associate
1
Local authorities shall be entitled, in exercising their powers, to
co-operate and, within the framework of the law, to form consortia with
other local authorities in order to carry out tasks of common
interest.
2
The entitlement of local authorities to belong to an association for
the protection and promotion of their common interests and to belong to
an international association of local authorities shall be recognised
in each
State.
3
Local authorities shall be entitled, under such conditions as may be
provided for by the law, to co-operate with their counterparts in other
States.
Article
11—Legal protection of local
self-government
Local
authorities shall have the right of recourse to a judicial remedy in
order to secure free exercise of their powers and respect for such
principles of local self-government as are enshrined in the
constitution or domestic
legislation.’.
Tom
Brake:
I believe that new clause 33 and new schedule 1
might command a greater degree of interest, if not support, from the
Government than the previous group of new clauses. New clause 33 and
new schedule 1 relate to the European charter of local self-government,
in which the Minister indicated an interest during our sitting on 22
February. The purpose of the proposed measures is to ensure that the
principle of local self government is recognised in
legislation.
For
those who are not so familiar with it, the charter
states:
“All
local authorities should manage a substantial proportion of public
affairs in the interests of the local
population”,
which is
something that I am sure all hon. Members support. The charter also
states:
“The
powers of local government must be recognised in
legislation”
and
that
“local authorities
must be able to act freely on all matters that they are best placed to
deal with”.
That is
motherhood and apple pie in certain respects, but the charter contains
a phrase that might be more problematic for the
Government:
“Financial
resources must be made available to local authorities to local
authorities to enable them to carry out their tasks”.
Clearly, the Government
recognise the issues. On 22 February, the Minister indicated
to my hon. Friend the Member for Hazel Grove, who leads for the Liberal
Democrats on such matters, that he was inclined to pursue the issue. In
fact, he invited us to table written questions to enable him to come
back with further detail on the matter. I assure the Minister that
questions were tabled today. We have not given him much time, but they
were tabled electronically so they will be in the system and he will be
able to see them in a few days, and I am sure that he can respond to
them in writing. The purpose of the written questions was to find out
what discussions have taken place between the Government and local
government—either individual local authorities or local
government representative organisations—on the European charter
of local self-government and the timetable for any future ratification
of the charter.
2.45
pm
The amendment,
perhaps unlike those in the previous group, is positive. It would
ensure that something the Government recognise as important is embedded
in domestic legislation so that local government will have the
safeguards that all members of the Committee want it to have to ensure
that it can carry on its business in the way that we feel is
appropriate and very much in the spirit of the Bill. With that, I
conclude my remarks and hope to receive a more positive response from
the Minister on new clause 33 and new schedule 1 than I did on the new
clause relating to
STV.
Mr.
Woolas:
I am glad that the hon. Gentleman has tabled the
questions electronically, a modernisation introduced when I was serving
under my right hon. Friend the Member for Neath (Mr. Hain),
when he was Leader of the
House.
The Government
signed the European charter of local self-government on 3 June 1997 and
ratified it on 24 April 1998. They did not choose to exercise the right
to reservations to certain provisions allowed by the charter, so all
its provisions have been relevant to local government since August
1998. In the explanatory memorandum that was laid before Parliament
recommending that the United Kingdom ratify the charter the then
Minister for Local Government and Housing, my right hon. Friend the
Member for North-West Durham (Hilary Armstrong), accepted
that
“Subscribing
to the charter strengthens the Government’s partnership with
local government and will enable key domestic policies to be developed
and implemented more
effectively”.
For that
reason, we were pleased to ratify the charter on the basis that it
would enshrine
“basic
principles already reflected in the United Kingdom of local
democracy”.
At the time,
we also made clear that any future legislation affecting local
government should further strengthen the degree of compliance with
aspects of the charter and ensure continued compatibility with its
provisions. I am therefore happy to reassure the hon. Gentleman and the
Committee that subsequent reforms to the system of local government in
England and, indeed, those detailed in the Bill adhere to the
provisions in the charter and the spirit in which it was
developed.
For
example, part 1 of article 10 of the charter sets out that local
authorities shall be entitled to co-operate with other local
authorities to carry out tasks of common interest, a prerogative
granted by giving local authorities the power of well-being under
section 2 of the Local Government Act 2000. Therefore, although we
agree with the reasoning of the hon. Member for Carshalton and
Wallington in tabling the amendments, the Government see no reason to
accept them on the basis that they would add nothing to the recognition
that we have already given to the right to local self-government by
ratifying the charter and adhering to its principles in subsequent
reforms. That is the bad
news.
Furthermore,
we do not have in our parliamentary system a broad tradition of
incorporating international treaty obligations wholesale into our
domestic legislation
when there is no need to do so. My notes do not say, “Pause for
intervention from Conservative Members regarding human rights
law,” although they ought to. However, in the absence of such an
intervention, I shall answer the question that the hon. Member for
Bromley and Chislehurst was going to ask. His predecessor would
certainly have asked
it.
Hon.
Members may say that the Human Rights Act 1998 incorporated the
European convention on human rights, a Council of Europe treaty, into
domestic law. However, the 1998 Act is distinct for one significant
reason: it incorporated a human rights legal framework into domestic
law, for the first time requiring domestic law to be interpreted as
compatible with the convention. It provided a system of legal challenge
and redress for UK citizens who were aggrieved about their rights, as
set out in the convention. Its purpose was to bring those home those
rights without the need, as was the case prior to the 1998 Act, for
citizens to resort to the European Court of Human Rights in Strasbourg
for any matter arising in relation to their rights under the
convention. In other words, the Human Rights Act incorporated into
domestic law that which was already domestic law, as covered by the
treaty, and simply meant that one could access the law without having
to go to Strasbourg. The European charter of local self-government
provides no such mechanism of redress or challenge, so there is no case
for incorporating its provisions wholesale into domestic
law.
Tom
Brake:
The Minister may be about to deal with this
matter, but he has left me rather confused. Will he clarify why he
suggested that my hon. Friend the Member for Hazel Grove submit a
written question? Was it so that the Minister could explain that the
matter had already been ratified, everything is hunky-dory and we do
not need to make any
changes?
Mr.
Woolas:
No, it was to say that the Government agree with
the hon. Member for Hazel Grove and that the purposes, intent and
outcome of the European charter—which is debated and is an
important issue in local government, as the hon. Gentleman
knows—are already in place and in operation and form one of the
tests of new legislation.
I was going to say what the
differences are in respect of the Human Rights Act, but the hon.
Gentleman did not argue that there was a parallel, although others
would. There is no case for incorporating the provisions of the
European charter of local self-government wholesale into domestic law,
because it provides no mechanism for redress or challenge, which is in
stark contrast to the argument that I have just outlined in relation to
the Human Rights
Act.
Even if there
were to be some monitoring or enforcement mechanism attached to the
charter, which there is not, the relationship between the two
instruments is different. One protects the rights of individual
citizens and the other ensures that domestic institutional structures
conform with internationally accepted norms. I strongly support the
hon. Gentleman’s views, as anybody who has read my speech to the
Committee of the Regions would understand. [ Hon.
Members: “We all have.”] I am glad to hear
that. I fell asleep reading that speech to myself. Hon. Members may say
that that is true of all my
speeches. [Interruption.] My hon. Friend the Under-Secretary
says, “Get on with it!” —and I have lost my
place.
Alistair
Burt:
How much does the Minister think that those in local
government can rely on the assurances contained in the European charter
of local self-government, bearing in mind that local decisions made in
the past couple of years by the people of France and the Netherlands on
the rejection of the European constitution are presently being
undermined by processes in the EU to get round the referendums that
said no to the
constitution?
The
Chairman:
Order. We are going well outside the scope of
this debate.
Mr.
Woolas:
The European charter is a treaty and member states
are therefore obliged to comply with both it and the other treaties
that have been mentioned. The proposed constitution is not a treaty.
There is no redress mechanism in the European charter, so including the
charter in UK law wholesale would duplicate pre-existing domestic law
and would be
unnecessary.
I
strongly support the principles behind the charter, and I accept the
argument of the hon. Member for Carshalton and Wallington about the
important part that the charter has played in delivering democratic
local governance—and not just in the UK, incidentally. However,
the new clause is unnecessary and it would introduce a confusing
innovation into the expression of our existing legal framework for
democratic local self-government. The Biggleswade villagers of the hon.
Member for North-East Bedfordshire would rise even more in anger at
that. I ask the hon. Member for Carshalton and Wallington to consider
those remarks.
Tom
Brake:
I thank the Minister for his explanation and for
his clarification that the charter has been ratified. Given that
incorporation in UK legislation would be inappropriate in practical
terms because of the lack of any redress mechanism or enforcement
powers, the decent thing to do is not to press my arguments. Therefore
I beg to ask leave to withdraw the
motion.
Motion and clause, by leave,
withdrawn.
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