Laying down the law — Does Scotland have a problem writing legislation?

In the first article in a three-part series, Peter Ranscombe cuts through the noise of political debate to ask if Scotland has a problem crafting legislation.

It’s a chorus that’s been echoed again and again by opposition politicians and campaign groups in recent years – that Scotland is writing ‘bad laws’. A series of legal challenges to Holyrood’s legislation at the UK Supreme Court has stoked criticism of the way in which laws are created.

Those cries of condemnation reached crescendo in the run-up to Christmas when, in the space of a fortnight, problems were spotted in the non-domestic rates regulations, proposals were unveiled to legislate again on the visitor levy, and questions were asked about why a law strengthening protections against female genital mutilation had still not been implemented five years after receiving royal assent.

Each problem was distinct. A routine inquiry from council officials revealed that the Non-Domestic Rates (Scotland) Act 2020 had, inadvertently, removed the legal basis for charging non-domestic rates – often called business rates – on empty premises, prompting the Non-Domestic Rates (Liability for Unoccupied Properties) (Scotland) Bill to be introduced and passed as emergency legislation within the space of a week.

Just days later, the Scottish Government unveiled plans to introduce the Visitor Levy (Amendment) (Scotland) Bill to give local councils the choice between charging a flat fee or a percentage, only a year after the original legislation had been passed. On the same day, questions were asked at Holyrood as to why the Female Genital Mutilation Protection and Guidance (Scotland) Act 2020 had not come into effect five years after being passed.

Problems have also been highlighted with secondary legislation: Stuart McMillan, chair of Holyrood’s Delegated Powers and Law Reform Committee, told Parliament last September that there had been “a marked decline in the quality of instruments”. With so many concerns raised, does Scotland have a problem in crafting legislation?

Political disagreements stoke allegations of ‘bad drafting’

While accepting that some mistakes are made, Dr Andrew Tickell, head of the Department of Economics and Law at Glasgow Caledonian University, points out that many criticisms of Holyrood legislation come down to disagreements over policy rather than problems with its drafting. “There are quite a lot of bad faith arguments that are rooted in claims about drafting, but which aren’t about drafting at all,” he says. “Laws that are drafted perfectly coherently are often described as ‘badly drafted’ by people who just don’t agree with the policy aspirations of the legislation.

“There’s something about the wider political discourse around this for me, which is particular to Scotland in its devolved context, where claims about political disagreement are translated into allegations of incompetence. That’s got something to do with the legalistic character of devolution. Westminster can pass whatever it likes and – however garbled, convoluted or impenetrable it is – the courts can’t say anything about it, whereas the legalisation of politics in the Scottish context and the resort by political losers to the courts, which we see quite a lot, means that this is often repackaged in that context.”

Andrew agrees that secondary legislation can be an area of under-scrutinised work. “It’s invariably true to say that secondary legislation, in almost all cases, attracts a vanishing ghost of the scrutiny of primary legislation – that’s simply a matter of the time,” he says.

Andy Wightman, who served as first a Scottish Greens and later an Independent MSP for the Lothian region between 2016 and 2021, echoes concerns that disagreements over policies lead to criticism of legislation. “I don’t think there’s any problem with the drafting of Bills – the problems Bills get into are largely a consequence of the policy instructions the drafters are given,” he says. “Bills, in general, are very well drafted.

“The non-domestic rates amendment Bill was a genuine error – and a forgivable error – because they were correcting a complex area of the law. But, in almost all the other cases, Bills, Acts or provisions come a cropper because they’ve been challenged in court and found, for example, to breach human rights. That’s not a drafting error, and that’s not necessarily a scrutiny error, because it’s the court’s role to determine if a law breaches human rights.”

Andy adds: “The Scottish Parliament is subjected to a form of media critique that Westminster never receives – it’s the courts’ role to rule on whether Acts fall within Holyrood’s competence, but there’s no such thing as ‘Westminster competence’ because it’s supreme. Some of the criticism is fair, but it’s got to be accurate, it’s got to properly diagnose why there’s been a problem with legislation, and not simply blame it on the member, the Government, the drafters.”

Problems with policies, not necessarily legislation

Michael Clancy, director of law reform at the Law Society of Scotland, observes that the roots of mistakes in legislation sometimes begin with policy. “In our work with the legislatures, we aim for good law – that’s law that’s necessary, clear, coherent, effective and accessible,” he explains. “Good law is not an easy thing to achieve, but it’s not made easier by policies that are difficult to implement. Legislation sometimes goes wrong because the policies that are adopted by governments are not necessarily fully researched or developed.”

Michael emphasises the importance of the consultation process. “Sometimes consultation responses are low – perhaps just double digits or fewer responses to consultation,” he says. “Consultation is therefore an extremely important part of the policy-making process and the legislative-forming process. Individuals, companies, trusts, charities or other entities must take care to examine their role in being consultees and do their best to fulfil those roles, because it’s out of good consultation that you get good ideas.

“Through consultations, Government may find that proposals have flaws in them, they might be based on an inaccurate appreciation of what the law is, they might be outside the competence of the Scottish Parliament, or might be defective in some other way.”

Jim Gallagher, chair of the Our Scottish Future thinktank and a former senior civil servant, agrees many problems stem from policies. “The single most important requirement for effective legislation is effective policy lying underneath it,” he says. “If legislation doesn’t work, it’s often because what it was trying to do was daft, was ill-thought through, was unprepared. The policy content matters, in a sense, almost more than anything else.”

In the next article in the series: Why do problems emerge when legislation is created?