As an enormous fan of Scotland as a holiday destination (particularly the highlands and islands), I was interested to see that back in May the Scottish Parliament passed the Visitor Levy (Scotland) Bill, which would allow local authorities to introduce a visitor levy to raise funds to be reinvested in facilities for visitors. Visitor levies, tourist taxes and other such schemes are quite commonly used in European countries, particularly those which are tourist hotspots (having just returned from Vienna, I can vouch for this!).

Widely supported by local authorities in Scotland, this iteration includes a mandatory consultation provision requiring local authorities to consult on proposals to introduce or modify such schemes, and to establish a “visitor levy forum” to advise the authority on it and respond to any consultation on scheme amendment. The provision (section 12, for those who are interested) is relatively prescriptive compared to most consultation provisions in legislation, which tend to amount to little more than a statement that “public body X must consult before doing Y”. This one however goes far beyond just that, and has some specific requirements that are worthy of consideration.

Firstly, it has quite a lot to say about the content of what is to be consulted on, somewhat unusual given that usually there is a large degree of deferral to the consultor when determining what it is they are consulting on. Under s.12(1)(a), the local authority must not only outline the scheme and identify any circumstances in which the levy will not be payable, but must also issue a statement about the objectives of the proposal and how they intend to measure and report on the achievement of those objectives.

It also extensively, albeit somewhat vaguely, covers who is to be consulted on the scheme:

“(i) such persons as the authority considers to be representative of communities, businesses engaged in tourism and tourist organisations in its area,

(ii) in the case of a modification of a VL scheme, the visitor levy forum for that scheme as established by the local authority in accordance with section 14A(1),

(ia) if any part of the area to which the VL scheme relates has been designated as a National Park, the National Park authority for that Park, and

(ii) such other persons as the authority considers likely to be affected by the proposal”

The first two in particular are curious. The ‘such persons as the authority considers’ formula is a common one (appearing twice here!), but it is somewhat interesting that in (i) it has been combined with more specific indications. Looking through the minutes and records of proceedings I have not found anything to suggest why this was done- perhaps merely a method to steer local authorities in the right direction? The cynic might also suggest with reference to this particular element that there is a missing consultee here- the tourists themselves. Although the chief concern will naturally be the interests of the local residents, and arguably you might expect those in the list to advocate on behalf of the tourists, I don’t think this is entirely guaranteed. It may simply be a practical thing- consulting people who are by definition transient might be even more difficult than a regular consultation, and part of me thinks that the impact on tourists is the reason that the Bill dwells on the importance of objectives and measurements- but we might reasonably ask is data alone enough to replace consultation?

The second paragraph in the ‘who to consult’ section represents an interesting layering of governance.  Whilst consultation itself is not governance, the visitors levy forum might be seen as a soft form of it. Appointments to the forum are left up to the local authority, with a few provisions mandating balance and relevance, but it seems an obvious point of potential challenge. It will be interesting to see how they go about making their appointments. The other curious consultation point with respect to the visitors levy forum is that it has a specific duty to respond to consultations on the modification of VL schemes, and the use of proceeds thereof. Seeing a specific duty to respond to a consultation is a fairly rare thing, and one that seems eminently testable under the law. Does an e-mail saying “Yes we think it’s fine” constitute an adequate response to the consultation? It’ll be interesting to see if anyone uses this as a lever to challenge any consultations under the bill.

It has to be said that these sort of tourism and second home decisions seem to attract the attention of unusual governance structures. A few years ago we discussed Whitby, where a decision on second houses being remitted to a parish poll, a rare form of direct democracy. Were we to be ungenerous we might suggest that this as an attempt to distance public bodies from decision-making where decisions could have a significant knock-on impact on local finances, but are still hot-topic issues.

The first schemes under the Scottish Bill won’t be introduced until 2026, so it’ll be interesting through 2025 to keep an eye out for any local authorities looking to introduce them. We’ll keep an eye out and see how they do.

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Article by Stephen Hill

Stephen was formally the Institute’s Legal and Parliamentary Officer, though now spends most of his time playing with rockets and satellites. He retains a keen interest in issues of democracy and public engagement however and provides independent commentary on consultation current affairs and legal challenges.