Tag Archives: committees

Politics and law-making in the Scottish Parliament

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:

  1. 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.

  1. 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.

  1. 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’.

  1. 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.

  1. 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.


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Scottish Parliament committees: when radical change isn’t radical change

You can find some very useful suggestions for Scottish Parliament committee reform in the summary and full speech (2015) by former Presiding Officer Tricia Marwick. They follow some useful suggestions by the Consultative Steering Group, which set out its plans for the committees in 1998.

The theme in both cases is: let’s find a way for the Scottish Parliament to be important, and for business-like committees (not partisan plenary debate) to be at the heart of its operation. Put more critically: let’s produce some good structures or reforms in the hope that political parties don’t act like political parties.

So, while the CSG expressed some hopes that the committees would perform a new role consistent with Scottish Constitutional Convention’s hopes for ‘new politics’ (‘more participative, more creative, less needlessly confrontational’), Marwick perhaps expresses some disappointment that it didn’t work out too well.

That said, Marwick’s suggestions get to the heart of many practical limits to the operation of committees. To demonstrate, look first at the way I summarised parliamentary life so far (for the Sunday Post):

“The Scottish Parliament’s committees have always suffered from a gap between expectations and reality. When the Scottish Parliament was introduced, there were high hopes that it would function far more effectively than Westminster. The architects of devolution rejected a second chamber in favour of a powerful unicameral Parliament with committees at the heart. To make up for the lack of a revising chamber, they front-loaded the legislative scrutiny process, with committees tasked first to consider the principles, then amend, draft bills. To reinforce committee power, they made many of them permanent, and gave committees the functions of two different kinds of Westminster committee – Standing (to scrutinise legislation) and Select (to monitor government departments and ministers). They have the ability to hold agenda setting inquiries, monitor the quality of Scottish Government consultation, and initiate legislation. The idea is that committees become specialist and business-like (leave your party membership at the door) and their members become experts, able to hold the government to account, and provide alternative ideas if dissatisfied with the government’s response.

The reality rarely lives up to the rhetoric. The party system still dominates, with MSPs whipped to ensure government control of parliamentary business (apart from the brief period of minority government from 2007-11). Parties control committee membership and have overseen a large turnover, which undermines MSP expertise. The committees are ill-resourced, and they struggle to generate the amount of information they need to perform scrutiny well. So, it is no surprise that committees struggle to keep on top of the evidence given to them. They have the ability to do little more than one piece of work before moving on to the next”.

Marwick’s suggestions at least address the latter points

Scottish Parliament committees are ill-resourced and their MSPs are spread too thin. They will often serve more than one committee and move between committees – which, if combined with high MSP turnover in every election, undermines their ability to become specialists in their field. So, Marwick recommended a smaller number of larger committees to reduce that thin spread and encourage more effective scrutiny.

Marwick also pushed for elected convenors to address the problem of committee/ government distance. Right now, the governing party can appoint its share of convenors (and members) and ensure that there is little distance between the governing/ scrutiny roles. The Scottish Parliament is also small and there is not the same chance (as in Westminster) to make a career out of being a backbencher/ convenor of committee. Electing those roles would make convenors ‘directly accountable to Parliament’ rather than subject to the whims of parties (maybe).

These moves would represent radical reforms in the Scottish Parliament, but …

I wonder if anyone outside of Holyrood would notice the difference. Certainly, they would not radically change the fairly traditional Westminster-style relationship between government and parliament in which the government governs and the parliament struggles to provide scrutiny with limited resources. Nor would they change the very strong tendency for MSPs to act along party lines. You can train new MSPs in the ways of the parliament (an abstract concept that takes time to appreciate), but also expect them to be socialised and whipped by their parties (a concrete process that you’ll be expected to recognise immediately).

These reforms would take place during a time of diminishing parliamentary influence

In a Political Quarterly article, I identify two aspects of devolution that may diminish the Scottish Parliament’s role in the near future:

  1. further devolution from the UK to Scotland will see the Scottish Parliament scrutinise more issues with the same paltry resources
  2. further devolution from the Scottish Government to local public bodies will see the Scottish Parliament less able to gather enough information to perform effective scrutiny.

Both issues highlight the further potential for the Scottish Parliament, heralded as a body to ‘share power’ with the government and ‘the people’, to play a peripheral role in the policy process. To all intents and purposes, the new Scotland Act will devolve more responsibilities to Scottish ministers, without a proportionate increase in parliamentary resources to keep tabs on what ministers do with those powers.

Perhaps more importantly, the Scottish Parliament can only really keep tabs on broad Scottish Government strategies. What happens when it devolves more policymaking powers to local public bodies, such as the health boards that give limited information to committees and the local authorities that claim their own electoral mandate?

In other words, the proposed reforms address the practical limits to parliamentary influence at a time when those limits are being further tested.

Are there any issues on which the parties can agree?

They also don’t really solve the problem of partisanship, which means (for example) that it will be difficult to get the parties to agree about the kinds of issues they should examine in depth. To be effective as a group, MSPs really need to prompt the Scottish Government to do something (perhaps more quickly) that it already wants to do, or find an issue that transcends party politics (perhaps such as the representation of women in the Scottish Parliament, as part of an inquiry into the extent to which it represents important social groups). In most cases, this won’t happen.

So, let’s welcome some parliamentary reform but be realistic about its effect.

[I discussed these issues briefly on Good Morning Scotland, 10.5.16 at 7.07am. It’s true – ask my cousin. He heard the whole thing.]


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