These are some notes for my short talk to the Scottish Public Law Group Annual Conference on the 13th June 2016. My session includes Andy Beattie, Chief Parliamentary Counsel (role includes drafting Scottish Government legislation) and Lynda Towers (former solicitor to the Scottish Parliament). So, as the only non-lawyer in the building, I am largely there as the entertainment. Or, in the more formal legal language of the invite, providing ‘reflections on the influence/impact of minority government on law/policy making, in addition to a more general policy/political studies perspective on law-making at Holyrood’.
I’d like to keep my discussion short, so will make a small number of points:
- The uncertain importance of new politics.
In the olden days (1999), people talked about the Scottish Parliament and its committees representing the heart of ‘new Scottish Politics’. The phrase accompanied a vague suggestion about ‘power sharing’ and the committees having a more important role than their Westminster counterparts. Some of this related to necessity, and you can see the results (e.g. there is no second chamber, so they ‘front loaded’ the legislative process). Some of it related to vague hopes for a new culture of policymaking, and you struggle to see the results.
- The importance of draft Acts.
The old literature on UK politics (on ‘policy communities’) talks about the political importance of draft Acts: by the time a bill gets to Parliament, the government (and its allies, involved in negotiating the policy in the draft) does not want to change it. It can modify at the margins, but a major change to the bill will necessitate more negotiation as well as more drafting. I think you can see this play out under ‘normal’ conditions: a government will signal which parts of the bill it can be flexible with, and the parts it will try to protect almost unchanged.
- The meaning of high quality legislation.
I was struck by Andy Beattie’s reference (in his slides) to ‘Drafting legislation to: deliver Scottish Government policy; and, secure the Scottish Parliament’s reputation for making high quality law which serves the people of Scotland well’. We might discuss two criteria for ‘high quality’ which don’t always mix well: one is the professional/ technical criteria reflecting the skill in turning broad policy aims into specific laws and regulations; another is the political criteria reflecting the chance for Parliament to debate and change legislation when introduced. Maybe they don’t always rub up badly against each other, but the thing that would possibly help – ‘pre-legislative scrutiny’ or engagement – often seems as or more visible in ‘old Westminster’.
- The impact of minority government.
Put simply, I didn’t see much difference during the last phase of minority government. There were two clear examples of major legislation not brought forward (on a referendum on independence, and on local income tax) and one important rejected section (on the minimum unit price of alcohol), but these examples related largely to temporary party politics rather than the more enduring government-legislature relationship.
- The importance of ‘anticipated reactions’.
A key argument (made most strongly about Westminster) is that the power of Parliaments comes in the actions of ministers and civil servants. We talk of ‘anticipated reactions’ to describe the lengths that the government takes to ensure that the legislation it drafts will not be vulnerable to too much parliamentary opposition. This seems important, but so too does the need for government and parliament actors to tell that story because it suits almost everyone involved.