Reflections on the Scottish Parliament, its structure and powers
John Haldane
Introduction
The circumstances and concerns that led to the passing of the Scotland Act (1998), which provided for the creation of the new Scottish Parliament, continue to influence political debate in Holyrood and in the country and in Westminster and across the UK. Whatever one’s view on the topics of devolution and the future of the United Kingdom, however, a decade on there is need to determine how well the arrangements provided for by the devolution legislation are serving the interest of good national government in Scotland.
The Structure of the Parliament
In advance of the drafting of the 1998 legislation there was discussion of possible structures and modes of election for a Scottish parliament. These ranged over various matters including the questions of whether it should have one or two chambers (unicameral or bicameral) and whether the voting system should be first past the post (FPP), proportional (PR), or mixed
In the event, and with resolve among the political architects of the legislation, it was determined that the Parliament should be unicameral but with mixed representation drawing on both FPP and PR. It may now be appropriate to reconsider the adequacy of this solution, which was in part designed to serve political interests.
The case for unicameral legislatures is essentially threefold:
- It is a simple arrangement.
- It avoids duplication with consequent costs and burdens.
- It allows government freedom to pursue its policies.
It is significant, however, that most democracies and developed political cultures favour bicameral systems, e.g. Argentina, Australia, Austria, Belgium, Brazil, Canada, France, Germany, India, Italy, Mexico, Pakistan, Russia, South Africa, Switzerland, and the United States. Among federal constitutions in the English-speaking world the many individual states also have bicameral legislatures; the only exceptions of which I am aware are Nebraska, US, and Queensland, Australia.
Ironically, since it is an ancient example of the system, the ubiquity of bicameralism is little known about within the UK, and its eschewal by drafters of the 1998 Scotland Act is rarely commented upon. One should ask, therefore, why democracies have typically favoured it both at the national and sub-national levels.
The case for bicameral legislatures is essentially that for mixed government:
- It better represents the character of a mixed society (urban/rural; metropolitan/regional; industrial/agricultural; indigenous/immigrant, etc).
- It allows for a division of political labour.
- It provides checks and scrutiny of government.
Advocates of the 1998 scheme argued for its simplicity, and addressed the matters of diversity of representation and the need of scrutiny by introducing the element of PR through the ‘List’ members, and by giving significant role to the Parliamentary Committees. Experience has shown, however, that both provisions have yielded to the pressure of political party interests, with the result that there is almost no independent representation, and little disinterested checking of government policy.
This is not the occasion to explore the details of an alternative structure but members of the currently serving Commission on Scottish Devolution chaired by Sir Kenneth Calman might usefully consider the possible defects of the present state of affairs and the question of whether the current structure is providing, or is likely to provide the results promised for it.
It is also worth considering whether there may be merit in the idea of a compromise between uni- and bicameral legislature consisting in the creation by statute of a Senatorial Committee within the Parliament of members to be appointed for a fixed period of the full lifetime of two or three parliaments (i.e. eight or twelve years); that appointment to be achieved through nomination by a joint Parliamentary Committee representing proportionally the elected membership of the legislative assembly.
All such Senators would be independents or ‘crossbenchers’. Their role would be restricted in various ways: they could not introduce nor vote down legislation but could refer it back to the legislative assembly; and they would also have the responsibility of producing reviews of the operations of the Parliament and scrutinising the conduct of MSPs.
This senatorial grouping might equal one third the number of elected MSPs and would be expected to be drawn from senior members of leading national constituencies: arts, business, education, faiths, law, medicine, and trade unions.
Important as they are, however, these are discussable details. The general purpose would be to introduce into the Scottish Parliament an element representative of the diversity of the country but which is also independent of, and not beholden to any particular party.
The scope of devolved powers in relation to ethical issues
Ethics and social morality are ineliminable characteristics of public policy. They may arise incidentally in the allocation of social benefits and burdens, or in the conduct of officers and agencies, etc. but they feature intrinsically in a range of issues where legislation is involved.
A parliament has the responsibility of legislating in accord with the moral traditions of the society it serves. It is no easy matter to determine these in full specificity, and nor are they simply a matter of majority opinion; but social values are partly tied in their nature and authority to the character and identity of particular societies.
This conclusion bears upon the matter of the division of devolved and reserved powers in areas of intrinsic moral significance, especially where there may be significant differences between the values of different societies. An example of this is the broad contrast between Scottish welfare communitarianism and English liberal individualism.
That contrast is in part historical, with parties of left and right in Scotland (patrician Tories, rural liberals and Clydeside socialists) favouring the promotion of the common good, but also contemporary, surfacing in differing attitudes north and south of the border to student fees and care for the elderly.
Without arguing the case for specific policies regarding these matters it is relevant to point out some salient facts. First, that there are differences in policy. Second, that these suggest different underlying values. Third, that such differences have a claim to be reflected in the range of devolved powers. Fourth, that they may have other expressions, for example in relation to the beginning and ending of life, and the nature and role of the family.
There is much discussion now around the question of fiscal autonomy, but here the matter is more fundamental and more extensive: it is that of moral autonomy. The existing division of reserved and devolved matters is complex. Health, including human tissue, and the provision of fertility services, is devolved; but reproduction and embryology are reserved.
Whatever the original rationale for this division it was liable to occasion challenges. Recent Westminster legislation in the form of the Human Fertilisation and Embryology Act (2008) reaches into the area where human tissue may be used and adapted without human reproductive purpose. Hence it may enter into a devolved matter. This raises a technical question about the adequacy of the demarcation of powers; but behind it stands the more substantive issue of the range of matters over which a devolved Parliament should have competence. If education and social services are not reserved why should broadcasting, abortion, human fertilisation and other matters bearing directly on moral and other values not also be devolved? Contrariwise, if the latter should be reserved why not the former also?
Conclusion
In December 2007 the Presiding Officer of the Scottish Parliament announced a debate on the subject of a new agenda for Scotland. The upshot was a decision to support "the establishment of an independently chaired commission to review devolution in Scotland". This led to the creation of the Commission on Scottish Devolution with the remit "To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, improve the financial accountability of the Scottish Parliament, and continue to secure the position of Scotland within the United Kingdom."
Unsurprisingly advocates of independence have taken issue with the Unionist presumption of this remit, but whatever one’s view of the larger issue it is timely to consider the operations of the existing Parliament, reviewing them from the perspectives of political and ethical interests and values as well as from those of efficiency, effectiveness and financial accountability.
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The foregoing derives from part of a submission to the Commission on Scottish Devolution