How Can the Scottish Parliament Be Improved as a Legislature?

Abstract

There will be a referendum on Scottish independence in 2014. The prospect of further constitutional change might prompt us to reconsider the role and influence of the Scottish Parliament as a legislature. Fourteen years of devolution has also given us plenty of experience on which to make our assessment of the limitations of the new Scottish political system. Yet, the title of this article also has the potential to mislead, because it suggests that the Scottish Parliament is in particular need of improvement. While it is common to hear criticisms of the Scottish legislative process, they do not seem to be more vocal or strong than in other legislatures. For example, there are few strong concerns about the quality of the legislation passed by the Scottish Parliament. Nor do we find relatively strong concerns about the Scottish Parliament's ability and willingness to scrutinise and help modify legislation introduced by the Scottish Government. Rather, the agenda is set by relatively high expectations for the Scottish Parliament to be a powerful legislature, producing relatively high levels of attention and disenchantment with the results. The first part of this article sets out the reasons for such heightened expectations and disenchantment. A second part of this agenda relates to the assumptions we employ when we make value judgements about the Scottish Parliament and consider how it can be improved. For example, are we worried about the quality of the legislation produced by the Scottish Parliament, or the origins of the legislation? In other words, we may tend to frame the problem in terms of the imbalance of power between executive and legislature rather than the specific policy outcomes. Or, we may worried about the quality of the legislation, not from a technical drafting point of view, but in terms of the ability of the legislature to provide meaningful scrutiny and make substantial changes to the draft bill. Such an agenda might prompt us to consider, for example, our willingness to trade ‘technical perfection', based on legislation produced by a well resourced and unchallenged executive, for a technically flawed piece of legislation based on considerable scrutiny, debate and last-minute consensus in Parliament. It is in this context that the main part of the article considers some common current concerns about the Scottish Parliament as a legislature, derived from discussions with practitioners and extrapolated from debates on the Scottish Parliament since devolution: it does not scrutinise government legislation sufficiently; it does not have a sufficiently large professionally trained staff dedicated to their activities; its independent scrutiny is undermined by the party whip; it is particularly peripheral to the policy process when opposition parties do not engage with Scottish Government legislation; and, it would benefit from an upper chamber. In most cases, the concern is that the executive is not sufficiently challenged by a Parliament able to scrutinise and suggest key revisions - not necessarily a comment on the technical quality of the legislation, or the level of popular consent that underpins it, but rather on the checks and balances within the Scottish system. Our focus on ideas regarding democracy may be more prominent than our focus on particular legislative processes or outcomes. The conclusion of the article considers the implications of this discussion for a further-devolved or independent Scotland, since the prospect of more constitutional powers may prompt us to wonder about the adequacy of Scottish legislative powers. For example, if the Scottish Parliament has more responsibilities, should (and could) it have more resources? Or, should we be focusing on more fundamental or principled discussions regarding, for example, the need for a written Scottish constitution? Much will depend on the type of further constitutional change Scotland eventually chooses, since only Scottish independence provides the ‘window of opportunity' for major institutional change.