Scotland’s 32 councils have acquired new legal protections against certain forms of central government intervention, just as the Scottish Government is considering proposals that could bring an end to the existing council structure and replace 14 territorial NHS boards with two larger health authorities.
The European Charter of Local Self-Government (Incorporation) (Scotland) Act 2026 came into force on 15 October. It introduces legally enforceable duties designed to protect local democracy, council responsibilities, consultation rights and financial autonomy.
The Scottish Government published detailed implementation guidance on 23 October, confirming that ministers must act compatibly with the Charter when exercising functions covered by the legislation. Courts may intervene when those duties are breached, although the remedies available depend on the nature of the decision or legislation being challenged.
The timing is particularly significant. On 21 September, ministers proposed replacing Scotland’s 32 councils with between six and ten regional authorities and approximately 120 to 160 smaller community authorities. Separate arrangements are being considered for island communities.
The government has also proposed replacing the country’s 14 territorial NHS boards with two larger organisations, covering eastern and western Scotland.
Neither restructuring programme has been fully implemented, and the council proposals remain at the consultation and policy-development stage. Nevertheless, the new legislation introduces legal questions about how these reforms can proceed, particularly where the responsibilities of democratically elected councils may be transferred, reduced or fundamentally reorganised.
What the New Law Actually Does
The European Charter of Local Self-Government is a Council of Europe treaty adopted in 1985. The United Kingdom ratified it in 1998, but ratification did not, by itself, make the Charter directly enforceable in domestic courts.
Scotland has now incorporated Articles 2 to 11 into its own legal framework. These provisions address the democratic foundations of local government, the distribution of public responsibilities, local authority boundaries, consultation, financial resources and access to judicial remedies.
Article 3 recognises the right of elected local authorities to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of their communities.
Article 4 establishes principles governing how responsibilities should be allocated. Public functions should generally be exercised by the authorities closest to citizens, with the nature of the work, efficiency and economy also taken into consideration.
Article 5 provides that changes to local-authority boundaries must not be made without prior consultation of the communities concerned.
Article 9 addresses financial independence. It states that local authorities should have resources appropriate to their responsibilities, including a measure of discretion over how those resources are used.
Article 11 recognises the right of local authorities to seek judicial remedies to protect their powers and the principles of local self-government established in domestic law.
These provisions do not prohibit central government from reorganising public services, altering council boundaries or redistributing functions. They establish principles and legal obligations against which particular legislative and ministerial actions can be assessed.
A Law Delayed by a Supreme Court Ruling
The legislation has a longer history than its 2026 commencement date might suggest.
Former Scottish Green MSP Andy Wightman introduced the original incorporation Bill in May 2020. The Scottish Parliament passed it in March 2021, but UK law officers referred provisions of the Bill to the Supreme Court.
On 6 October 2021, the Supreme Court ruled that certain provisions exceeded the legislative competence of the Scottish Parliament. The dispute concerned, in particular, proposed powers for Scottish courts to interpret and scrutinise legislation enacted by the UK Parliament.
The ruling did not prevent Scotland from incorporating the Charter. It required the legislation to operate within the limits established by the Scotland Act 1998.
Following reconsideration and amendment, the Scottish Parliament approved the Bill on 3 March 2026. It received Royal Assent on 15 April and its principal provisions commenced six months later.
This constitutional history helps explain an important limitation in the new Act. Its principal ministerial compatibility duty generally applies to functions derived from Acts of the Scottish Parliament, relevant Scottish subordinate legislation and common law. Devolved functions derived from UK Acts are generally outside that particular duty.
The distinction has immediate consequences for the proposed NHS reorganisation.
Scotland’s 32 Councils Face an Uncertain Future
The Scottish Government’s September proposal would substantially alter Scotland’s existing system of local administration.
Under the initial model, between six and ten regional authorities would oversee strategic functions, potentially including economic development, housing, transport, education and major planning responsibilities.
Between 120 and 160 community authorities would exercise more localised functions, potentially including licensing, smaller planning applications, local facilities, town centres and community services.
Ministers have proposed retaining elections at existing ward level, with elected councillors serving on both community authorities and their associated regional authorities. The government argues that this could reduce administrative duplication while moving appropriate decisions closer to communities.
However, the precise boundaries, allocation of powers, financial arrangements and statutory status of the proposed authorities remain to be determined.
These details matter under the new Charter legislation. The replacement of existing councils would not automatically breach the Charter simply because the number or geographical size of authorities changes. The proposed replacement system would need to be examined according to the democratic responsibilities, independence and resources assigned to its constituent authorities.
The Charter also requires prior consultation before local-authority boundaries are changed. That protection does not confer an automatic veto on existing councils or guarantee a referendum, but it creates a significant procedural requirement for restructuring.
Any future Public Bill introduced in the Scottish Parliament to implement council reform would also require a published Charter compatibility statement under section 11 of the 2026 Act.
COSLA Connects the New Law to Government Reform Plans
The Convention of Scottish Local Authorities, COSLA, has explicitly connected the commencement of the Charter legislation with the government’s proposed restructuring.
COSLA Vice President Councillor Steven Heddle welcomed the new law and observed that it had arrived as ministers were seeking to restructure local government.
He said the Charter gives public service reform a test centred on whether communities are placed first, while emphasising that councils must retain appropriate powers, resources and flexibility.
COSLA had already expressed concerns about the government’s proposals. Following a meeting of council leaders on 25 September, COSLA President Councillor Shona Morrison called for meaningful engagement, sound evidence and agreement between national and local government.
COSLA has argued that reforms should strengthen local democracy rather than impose new structures from the centre. It has also called for communities, council employees and trade unions to have meaningful involvement in the process.
These positions do not establish that COSLA has begun legal proceedings or that an eventual challenge would succeed. They do, however, identify the issues against which the proposed reforms will be scrutinised.
The NHS East–West Reorganisation Has a Different Legal Position
The new legislation does not provide the same direct protections to NHS boards as it provides to elected councils.
On 22 October, the Scottish Government confirmed that its proposed replacement of 14 territorial NHS boards with two larger boards could be achieved through existing powers under the National Health Service (Scotland) Act 1978.
This matters because the 1978 Act was enacted by the UK Parliament. Although the relevant NHS powers are now exercised by Scottish Ministers, their origin in UK legislation generally places them outside the principal compatibility duty in section 2 of the new Local Self-Government Act.
Furthermore, NHS boards are not democratically elected local authorities. They do not enjoy the Charter’s protections simply because they operate within defined geographical areas or provide essential local services.
The government therefore has a statutory route to merge existing NHS boards without introducing an entirely new Act of the Scottish Parliament. It can use secondary legislation made under the 1978 Act.
That does not exempt the restructuring from legal scrutiny.
Section 2(3) of the 1978 Act specifically authorises changes to NHS board areas, including changes involving the creation of new boards or termination of existing boards’ functions. Before making such an order, ministers must consult the bodies and organisations that appear to them to be concerned.
That is a separate statutory consultation requirement. Ministers must also comply with other applicable public-law duties and remain within the authority granted by Parliament.
Consequently, the Charter does not provide an automatic means of blocking the East–West NHS merger, but particular decisions taken to implement it could still be challenged if they are unlawful.
Social Care May Bring the Two Reforms Together
The position becomes more complicated when NHS restructuring intersects with services for which local councils currently hold statutory responsibilities.
Scotland’s councils are responsible for important social work and social-care functions. Health and social care services are also organised through integration arrangements established under the Public Bodies (Joint Working) (Scotland) Act 2014.
That legislation was enacted by the Scottish Parliament, bringing ministerial functions derived from it potentially within the scope of the new Charter compatibility duty.
The Scottish Government has previously indicated that the NHS should take a leading role in future arrangements for social care, including decision-making, accountability and funding. COSLA warned on 2 October that transferring responsibilities into larger NHS organisations could diminish the independence of social care and social work.
However, the government confirmed on 22 October that no decisions had been taken about the future of Integration Joint Boards and that existing statutory integration arrangements remained in place.
A distinction must therefore be maintained between merging NHS boards and subsequently transferring council responsibilities.
The first proposal principally concerns NHS administration under the 1978 Act. The second could involve legislation and ministerial functions governing elected local authorities, bringing the Charter’s protections more directly into consideration.
Whether a particular social-care change would breach the law would depend on its statutory basis, the responsibilities affected and the arrangements ultimately adopted.
What Powers Do the Courts Have?
The new Act creates several mechanisms for legal scrutiny, but it does not make every incompatible measure automatically invalid.
Section 2 places a compatibility duty on Scottish Ministers when they exercise functions falling within the Act’s defined scope. A ministerial decision taken unlawfully in the exercise of such a function could be subject to judicial review.
Section 4 requires specified Scottish legislation to be interpreted compatibly with the Charter as far as it is possible to do so.
Section 5 allows the Court of Session or UK Supreme Court to issue declarations of incompatibility concerning legislation within the Act’s scope. A declaration does not, by itself, invalidate an Act of the Scottish Parliament or prevent it from continuing to operate.
Different remedies may be available where a ministerial decision or subordinate legislation is unlawful. In appropriate circumstances a court can set aside an unlawful decision or provision, subject to the applicable statutory framework.
The distinction is important. A council may be able to establish that a particular consultation, transfer of powers or ministerial decision is unlawful without securing the abandonment of an entire restructuring programme.
Questions and Answers: What Could the New Law Actually Prevent?
1. Could Councils Stop the NHS Being Divided into East and West?
The new Local Self-Government Act does not directly give councils that power.
The Scottish Government proposes merging 14 territorial NHS boards into two organisations, one covering eastern Scotland and the other western Scotland. NHS boards are not elected local authorities protected by the Charter.
The government has also confirmed that the board merger can be implemented using the National Health Service (Scotland) Act 1978, which originated in the UK Parliament.
Section 2 of the 2026 Local Self-Government Act generally excludes functions derived from UK legislation from its principal Charter compatibility duty. Consequently, the NHS board merger would not ordinarily be subject to that specific duty merely because Scottish Ministers are exercising the powers.
This does not prevent other legal challenges. It means the Charter cannot simply be invoked to prohibit the creation of two NHS boards.
2. Can the Government Merge NHS Boards Without Consultation?
No. The 1978 NHS legislation imposes its own consultation requirements.
Section 2(3) authorises changes to NHS board areas, including changes that involve establishing new boards or terminating existing boards’ functions. Before making an order, ministers must consult bodies and organisations they consider concerned.
The legislation does not automatically require a referendum or give every affected council the right to approve the restructuring.
However, failure to satisfy a statutory consultation requirement, acting beyond the powers provided by law or committing another material public-law error could create grounds for judicial review.
Whether a challenge succeeds would depend on the particular order, the process followed and the legal duties applicable to it.
3. What Happens If the NHS Takes Over Council Social-Care Responsibilities?
This is where the new Charter legislation may become more directly relevant.
Councils have statutory responsibilities for social care and social work, while the Public Bodies (Joint Working) (Scotland) Act 2014 provides for integrated health and social care arrangements.
If ministers subsequently use powers derived from Scottish Parliament legislation to change those responsibilities, they may need to demonstrate compatibility with the Charter.
Questions could arise about the removal of local powers, democratic accountability, financial resources and consultation.
Such a challenge would concern the particular social-care changes, not automatically the separate NHS board merger.
The Scottish Government confirmed on 22 October that existing integration arrangements remain in place and no decisions have yet been taken on the future of Integration Joint Boards.
4. Can the New Law Prevent the Abolition of Scotland’s 32 Councils?
It could provide grounds to challenge the legislative or administrative arrangements used to replace them, but it does not guarantee that the existing councils must continue indefinitely.
The Charter protects democratic local self-government rather than a fixed number of local authorities.
Ministers could argue that a combination of regional and community authorities preserves democratic representation and brings certain decisions closer to residents. Opponents could examine whether the proposed arrangements genuinely protect local powers and financial independence.
The legal issue would concern the functions, democratic accountability, resources and consultation arrangements established by the final legislation.
5. Do Councils and Residents Have to Agree Before Boundaries Are Changed?
The Charter requires prior consultation of affected local communities before local-authority boundaries are changed. It also establishes principles requiring local authorities to be consulted appropriately on matters directly affecting them.
Consultation is not the same as consent.
Article 5 allows for consultation by referendum where legislation permits, but does not automatically require a referendum for every boundary change.
COSLA has called for agreement between central and local government before fundamental restructuring proceeds. That is its stated position on how reform should be conducted, rather than a general statutory requirement that every existing council must approve the final proposals.
6. Does the Charter Protect Council Funding?
Article 9 establishes principles concerning the adequacy and independence of local-government finances.
It says councils should have resources appropriate to their legal responsibilities and should be able to exercise discretion over those resources within the framework of their powers.
It also addresses consultation over redistributed funding and discourages excessive restrictions on grants.
These provisions may become relevant where councils are given substantial duties without corresponding resources, or where financial restrictions materially interfere with local autonomy.
However, the Charter does not guarantee a particular annual budget, prohibit all ring-fenced funding or give courts a general power to determine how much money each council should receive.
7. Must the Government Publish a Legal Compatibility Assessment?
Section 11 of the 2026 Act requires anyone introducing a Public Bill in the Scottish Parliament to make a statement about the Bill’s compatibility with the Charter. Parliament must publish that statement.
The government’s September council reform paper is a policy proposal, not a Public Bill. It does not itself constitute the statutory compatibility statement that would accompany legislation introduced to implement the reforms.
No corresponding statement for a council reorganisation Bill has been identified in the material reviewed for this article. This does not establish whether ministers have already undertaken internal legal assessments.
The proposed NHS board merger is different because ministers intend to use secondary legislation under the 1978 Act. Section 11’s Public Bill statement requirement does not apply to that procedure.
8. Has COSLA Begun Legal Action Against the Reforms?
COSLA has publicly raised concerns about the proposed reforms and has explicitly connected the new Charter protections with ministers’ plans to restructure local government.
Its published statements reviewed for this article do not confirm that legal proceedings have been authorised or commenced under the new Act.
COSLA has called for meaningful consultation, sound evidence, protection of local democracy and agreement between national and local government.
Whether the organisation or individual councils have commissioned legal opinions or are considering specific proceedings remains unconfirmed in the publicly available material examined.
9. Could a Judge Overturn the Government’s Decisions?
In appropriate circumstances, a court can intervene where ministers act unlawfully.
Judicial review may provide remedies where a ministerial decision or relevant subordinate legislation breaches applicable legal requirements. Depending on the circumstances, an unlawful decision or provision may be set aside.
However, a declaration of incompatibility under section 5 of the Local Self-Government Act does not automatically invalidate primary legislation. The legislation remains in force unless amended or repealed.
The available judicial remedy therefore depends on whether the challenge concerns an executive decision, subordinate legislation, an Act of the Scottish Parliament or another exercise of public power.
Even a successful challenge to part of a restructuring programme would not necessarily prevent all other parts from proceeding.
10. What Does This Mean for Rural Scotland and the Highlands and Islands?
The Charter’s protections are particularly relevant to the allocation of local-government responsibilities in areas with distinctive geographical and service-delivery needs.
The Scottish Government has indicated that island communities may require bespoke local-government arrangements and that the NHS reforms should recognise the needs of rural and island residents.
For the NHS, the principal legal limitation remains that the merger of territorial boards under the 1978 Act is not ordinarily covered by the Charter’s main ministerial compatibility duty.
Questions about hospital access, specialist referrals, patient travel and service relocation would therefore need to be assessed under the legal duties governing the relevant NHS decisions, rather than assuming the Charter protects the existing board boundaries.
The government states that routine and community services should remain as local as possible, while specialist care should be organised around clinical outcomes, workforce sustainability and patient safety.
As of 22 October, the detailed business case and impact assessments were still being developed. The government’s published information had not established the full operational consequences of the East–West model for every rural and island community.
For local government, the position is different. The Charter expressly addresses consultation over boundaries, the allocation of functions, democratic local accountability and resources appropriate to responsibilities.
These protections create legally relevant questions about the design of any replacement authorities serving the Highlands and Islands, including whether regional structures preserve sufficient local decision-making power and accommodate the particular costs and difficulties associated with remote public services.
The legal outcomes will depend on the final proposals, the legislation used to implement them and any subsequent decisions taken by ministers.
The Decisions Still to Be Made
The Scottish Government is now pursuing two major programmes of structural reform under different statutory frameworks.
The proposed replacement of Scotland’s councils would directly engage questions about local democratic representation, autonomy, consultation and the allocation of public responsibilities. The new Charter legislation provides enforceable protections relevant to those questions, but does not prohibit reorganisation itself.
The NHS East–West proposal can proceed through a separate legal route under the 1978 Act, with its own consultation requirements and other applicable public-law safeguards. The Charter’s more direct relevance may arise later if powers currently held by elected councils are transferred as part of wider health and social care reform.
The next stages will determine whether the government’s proposals remain primarily administrative reorganisations or produce more substantial changes to the distribution of public authority across Scotland.
The eventual legislative instruments, consultation records, impact assessments and allocation of statutory responsibilities will provide the evidence needed to establish how the new law applies in practice.
Sources
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https://www.legislation.gov.uk/asp/2026/11/enacted
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https://www.gov.scot/publications/european-charter-local-self-government-incorporation-scotland-act-2026-guidance-stakeholders/
European Charter of Local Self-Government (Incorporation) (Scotland) Bill: Parliamentary History. Scottish Parliament, 2020–2026.
https://www.parliament.scot/bills-and-laws/bills/s5/european-charter-of-local-self-government-incorporation-scotland-bill
Reference Concerning the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. UK Supreme Court, judgment delivered 6 October 2021.
https://www.supremecourt.uk/cases/uksc-2021-0080
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https://www.gov.scot/publications/public-sector-reform-proposal/
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https://www.legislation.gov.uk/ukpga/1978/29/section/2
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https://www.legislation.gov.uk/asp/2014/9/contents
Scotland’s Councils and Communities to Have a Stronger Voice in the Decisions That Shape Their Lives. COSLA, October 2026.
https://www.cosla.gov.uk/news/2026/october/european-charter-commencement
COSLA Respond to Scottish Government’s Plans to Reform Local Government. COSLA, 25 September 2026.
https://www.cosla.gov.uk/news/2026/september/cosla-respond-to-sg-plans-to-reform-local-government
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