Scottish Constitutional Forums Scotland Workshop: ‘After the Referendum: A Constitution for an Independent Scotland’
Session 3: Constitutional institutions in an independent Scotland
Professor Paul Cairney, University of Stirling email@example.com
The Role of the Scottish Parliament in a Devolved or Independent Scotland
My brief for this talk was to consider, ‘how the Scottish Parliament might be enhanced to make it a more effective legislature and check on executive power’. This seems too optimistic for me, so I am going to focus on two slightly different statements:
- The Scottish Parliament has not been an effective legislature and check on executive power.
- In an independent or further devolved Scotland, the Scottish Parliament will not be an effective legislature and check on executive power.
At least that way, with our expectations suitably low, we can be pleasantly surprised if things work out.
We should also note that the Scottish Parliament is not just there to scrutinise and legitimise legislation:
- It has a deliberative role, to encourage debate, inform the public, and mediate the demands and concerns of constituents.
- It has a participative role, to encourage people to bring petition-based initiatives and act as a hub for groups seeking to influence the policy process.
- It has a symbolic (in the good sense of the word) role, as a representative of ‘the people’, which includes its ability to adequately represent major social groups and promote equality (on grounds of gender, race, ethnicity, disability, age, and so on).
- It has a role in informing the public about the Scottish Parliament and its role in Scottish Politics; in promoting the visibility of politics (beyond party conflicts).
The Scottish Parliament has not been an effective legislature and check on executive power.
In How Can the Scottish Parliament Be Improved as a Legislature? I explore five main points ‘derived from discussions with practitioners and extrapolated from debates on the Scottish Parliament since devolution’:
1. The Scottish Parliament did not live up to expectations. We used to talk about Scottish Parliament committees being the ‘motor of new politics’. Scotland has a unicameral system, with the absence of a second chamber offset by a ‘front-loaded’ legislative process with ‘powerful committees’ (which combine standing and select committee functions) at the centre. This power (for example, to consider the principle and details of bills before plenary) was to be supplemented by the promotion of a ‘businesslike’ attitude of committee members when scrutinising government policy and raising new issues through inquiries. Committees would operate in the context of an electoral system expected to minimise the chance of majority single party government. At the same time, the Scottish Parliament was designed to be part of the ‘Westminster family’, with the government there to govern and the parliament to perform a traditional scrutiny function.
So, by not living up to expectations, I mean the expectations of devolution reformers such as the Scottish Constitutional Convention, not the UK Government or associated bodies (Jim Johnston and I compare their expectations in What is the Role of the Scottish Parliament?). The latter can point to an unprecedented level of visible parliamentary scrutiny of Scottish government.
2. The Scottish Parliament does not scrutinise government legislation sufficiently
We can point to four main gaps in scrutiny:
- The Scottish Government dominates a punishing legislative agenda and committees are part of a sausage machine/ conveyor belt with limited change to scrutinise. This point was made most strongly from 1999-2003 and 2003-2007 when Labour and the LibDems formed a majority coalition government and passed 50/ 53 bills per 4-year session. The SNP minority government 2007-11 passed 41 (and dropped bills on a local income tax, and the referendum).
- From 1999-2007, committees argued that they had minimal time to produce agenda setting inquiries. From 2007-11, they had more time but did not fill the gap.
- Governments can pursue many policy aims without the need for parliamentary approval of legislation.
- The Scottish Parliament has struggled to get enough information to scrutinise effectively – particularly from public bodies out of immediate Scottish Government control (local authorities, health boards and non-departmental public bodies).
3. The Scottish Parliament does not have a sufficiently large professionally trained staff
Committee MSPs are supported by a few dozen staff, overseeing the work of a Scottish Government spending around £30bn and employing around half a million employees, including over 16,000 civil servants and over 10,000 in quangos. The trend has been to reduce those parliamentary numbers in the ‘age of austerity’.
4. The party whip undermines independent scrutiny, or parties do not engage with the legislative process
Since 1999, the main parties have been remarkably well whipped. So, the majority coalition government was able to dominate the legislative timetable, votes and even the decisions on committee size and membership. Minority government did not cause a profound shift in the parliament-government relationship (although the SNP was obliged to seek coalitions with some parties, particularly to secure the vote on its annual budget bill, and it worked well with the Conservatives). Politics often became more adversarial, with much debate moving from committees to plenary. If this is what Nordic-style minority party consensualism looks like, we have been sold a dud.
5. The Scottish Parliament would benefit from an upper chamber
An independent Scottish political system will, almost certainly, be unicameral. So, the more realistic discussion is about how to make up for the absence of a second chamber. The experience of Scottish devolution since 1999 is that a ‘front-loaded’ system, with committees at its heart, does not provide anything like the ‘checks and balances culture that we might associate with the diffusion of power between legislative arenas and institutions’. Majority single party government, combined with a strong party whip and the limitations of Scottish Parliament resources, does not fit the bill. Although there are additional financial/ audit checks on Scottish Government activity, and wider checks such as membership of the EU (and a commitment to the ECHR), the unicameral Scottish Parliament experience points to the need for something like a written constitution outlining the new roles and responsibilities of institutions.
In an independent or further devolved Scotland, the Scottish Parliament will not be an effective legislature and check on executive power.
I don’t think it would surprise many people if further devolution produced no change in the size of the Scottish Parliament and its relationship with the Scottish Government. Even in the absence of an ‘age of austerity’, it is difficult to argue for more parliamentary resources and very few are willing to do so. Only independence, and a sense of major change, produces the ‘window of opportunity’ to reconsider the role of policymaking institutions fundamentally. Yet, I haven’t seen any major group making a serious push in this direction (although see this thread on Better Nation). Of greater note is that idea that local bodies will take on more political and policymaking responsibilities and that the Scottish Parliament could even remain almost untouched. You can follow this in a related post, in which I try to sum up those positions. Each position would, I think, either produce the same or reduced levels of Scottish Parliament involvement in the politics and policymaking of the Scottish Government and the public sector:
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