Lord save us from another House of Lords.
That was the consensus during the drawing up of the Scotland Bill prior to Scottish devolution in 1998. So, with scant debate, it was agreed the Scottish Parliament would be a unicameral – single chamber – legislature with no revising body. After all, that is what had existed prior to 1707. Besides, despite the existence of Scottish peers in the House of Lords, prior to devolution specifically Scottish legislation received little by way of detailed scrutiny either before or after it became law.
At the time, it was argued there was in the Scotland Bill a range of checks and balances on the power of the Scottish executive, including Audit Scotland. As for a revising chamber, that function would be carried out by the Holyrood committees.
However, as The Herald reports today, the Standards, Procedures and Appointments Committee is asking for evidence on whether a change is required that would compel the Scottish Parliament to review all Scottish legislation to check its effectiveness. This comes against a backdrop of rising criticism from all parties and from outside academics such as Professor Paul Cairney of Aberdeen University, of the Holyrood committee system in holding the executive to account, following the SNP landslide in 2011.
Arguably, the revising function has never worked well. In the early years, such was the weight of legislation that committees operated a conveyor belt system, with limited pre-legislative scrutiny and little time to look back on legislation that was already on the statute book. Between 2007 and 2011 there was less legislation but most of it commanded cross-party support, so there was less incentive to review it.
Since 2011 the SNP has dominated the committees as well as the Parliament, raising questions about the committees' ability to hold the Scottish Government to account. This is especially the case when committee recommendations are ignored as the legislation reaches the chamber. The proposed changes to criminal legal aid are a case in point.
With the independence referendum dominating Scottish politics and constructive engagement in the legislative process hampered by the level of mutual antagonism between Labour and the SNP, this serious issue is being obscured. Yet, regardless of whether Scotland is independent or not, this lack of legislative scrutiny risks undermining the Scottish Parliament's legitimacy.
The Holyrood committees have carried out some voluntary scrutiny of legislation but should that process not be automatic? Reviews have tended to be limited with little opportunity to take evidence. And, compared with the executive, the Scottish Parliament has relatively few members of staff able to devote time to policy work.
In the US there is close to an obsession about the checks and balances between the executive and the legislature. Yet in Scotland, the executive was able to make a major agreement with local authorities (the concordat), change the financing of major infrastructure projects and abolish prescriptions charges, all without primary legislation. And inevitably some laws passed in good faith turn out to be dead letters, or to have unfortunate unforeseen consequences. Some legislation needs to be changed in line with changing circumstances, which is why prior and post legislative scrutiny are equally important. Ultimately, a government is judged by the quality of its legislation, not the quantity.
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