At the heart of the matter there is a role, and a constitutional requirement, for a legislature to act as a check and balance on the power of the executive.
Throughout the debate in the 1990s, and the various strands involved in the constitutional convention there was great hope, in the creation of the Scottish Parliament, of a “new politics” and a “modern parliament”.
One particular hope in this regard, and one that was drummed in to me during modern studies classes at secondary school was the Committee system. In particular how it was to be “different”; “beefier” than Westminster. Crucially, they have the power to propose their own legislation.
This power is almost unique world over, but has been rarely used.
And sadly, the scrutiny carried out by the Committees is failing to live up to the hopes of a “new politics.” Committees are failing to set their own agendas, and hold Government to account in the way that it was hoped.
This tendency has increased in the current Parliament. Some may argue that this is because there is a majority – something never seriously thought possible throughout the convention – and that the Labour and Liberal MSPs didn’t scrutinise the work of the then Scottish Executive any more than is happening now.
However, it is worth remembering that the policy of free personal care was promoted by a Holyrood Committee in the first Parliament. Scottish Ministers were not in favour. Subsequently the then Scottish Executive adopted the policy and brought forward legislation. However, not after a very public push from the Committee, which included MSPs of the governing parties.
Another example is the Justice Committee’s enquiry in the Shirley McKee affair. This was a Committee Enquiry, it was public, sought to find out the facts, and was carried out by the Parliament. The People’s Parliament, providing answers for the people. This was the most high profile enquiry that the Parliament has ever conducted. This remains the case today. The purpose of the enquiry was, crucially, to find out the facts. It was not to support the actions of the state, give the Police an easy ride or to cover up bad decisions made by Ministers.
This must be compared to the current Parliament’s Justice Committee scrutiny of Kenny McAskill MSPs Court Closure programmes during the period he was Justice Minister. When it came to the vote at Committee SNP members voted in favour of the closures after hearing evidence from campaigns to keep them open. Campaigns which some of the said MSPs were actively involved in!
And then we come to the most recent debacle over the Culture Minister Fiona Hyslop MSP, T in the Park and state aid brokered through an ex SNP spin doctor. Opposition MSPs called for the Ms Hyslop to be brought back before Holyrood’s Education and Culture Committee, claiming she had failed to provide satisfactory answers to their questions. However, the Convenor and SNP MSP Stewart Maxwell, advised the media that rather than the Minister further explaining matters to Parliament, the Committee would issue written follow up on her evidence.
The very prospect of a Minister being recalled to a Committee because of questions over her responses to questions is significant. It is unfortunate that this did not result in more coverage and debate about the powers of Committees in the Scottish Parliament.
Sadly this is indicative of the Parliament’s failure to adequately scrutinise the actions of Government. Less scrutiny of the Government means less media interest and therefore a declining of the power and influence of the Parliament across society in general.
The recent comments of SNP MSP John Mason are also relevant in this regard. He suggested that it is backbenchers’ attitudes which are a more pressing concern than the structure of the Committees themselves. He continued that backbenchers ought to realise that part of their role is to scrutinise legislation and policy and hold the Government to account. He went as far as suggesting that some backbenchers seem to be overly protective of the party line.
The SNP are not a party known for their dissent so this remark is telling if nothing else. MSPs must fulfil their function of holding the Government to account and ensuring the legislative scrutiny is carried out at the highest possible level.
Following on from concerns regarding the lack of scrutiny of legislation through Parliament, there is also no mechanism for post legislative scrutiny in Scotland.
Only last week saw the potential benefits of a Second Chamber. The House of Lords defeated Tory Government proposals over tax credit cuts in dramatic fashion. This has reignited a campaign and debate, more recently on the back burner, that of House of Lords reform.
The House of Lords voted for a Labour motion demanding full compensation for the low paid for at least 3 years. In a further vote the Upper House voted to delay the cuts until the Government responds to the Institute for Fiscal Studies’ assessment of the measure.
Since the defeat suggestions of curtailing the Lords’ powers or flooding the upper chamber with new Tory Peers have been mooted by the Government.
On this occasion, the Lords were on the right side. But can un-elected, appointed individuals and religious leaders really, in a modern Britain, be permitted to make such dramatic changes to the policy of the elected majority Government? It seems a bit like a step back to the days of the Empire where the upper classes ruled the day.
However the debate which this most recent spat has sparked should be welcomed. What would an elected upper chamber look like? In the current climate of austerity and budget cuts it is doubted that the public would be supportive of yet another set of elections, salaries and expenses for people in far flung Westminster who have little grip on the reality of many people’s lives.
In Scotland, an Upper Chamber seems pretty far off. There is little, if no, appetite for such a discussion. And given the terms of the constitutional settlement, what difference would it make?
The Scottish Parliament is not, and will never be, a sovereign Parliament. Scottish Ministers exercise their power on behalf of the Crown, which remains the constitutional source of Government authority across Britain. This means that the Scottish Parliament, by its very nature, is always going to be subject to more judicial scrutiny than Westminster. In many ways, for no other reason than, because there are more areas of challenge. The seminal case, in which Thompsons were the leading participant, of Axa v the Scottish Ministers did severely limit the grounds upon which Scottish Parliamentary legislation can be challenged. However, even since then, there has been a litany of challenges to Scottish Parliament’s legislation from Alcohol Minimum Pricing to the Named Person..
It is not, as some suggest, because the Scottish Parliament is somehow an inferior legislature compared with Westminster. Arguably, the Scottish Parliament has to jump through more hoops and more scrutiny in order to ensure that the legislation is not only compliant with the Scotland Act 1998, the Human Rights Act 1998 and various European rights which the Scottish Parliament cannot fetter with any legislation.
In these circumstances, the question of the benefit of a second chamber has to be considered. It is suggested that those backbenchers should properly use the powers of scrutiny which they currently have, before seeking further change. Legislative scrutiny should be objective and not along party lines. It is essential for the reputation of this young Parliament for this to happen. Otherwise it risks becoming an entire irrelevance.