Laying down the law — how can Scotland write better legislation?

In the final article in a three-part series, Peter Ranscombe asks if changes need to be made to avoid mistakes in creating legislation.

When the Scottish Parliament began meeting in the Church of Scotland’s General Assembly Hall in Edinburgh in 1999, there was a sense of optimism in the air. A unicameral parliament had been created, with a committee system put in place to scrutinise legislation and hold the executive to account.

A quarter of a century later, a host of developments has made Holyrood’s job more complex. Further waves of devolved powers, the incorporation of the European Convention on Human Rights (ECHR) into Scots law and the introduction of the post-Brexit UK Internal Markets Act are among the measures that have added to the complexities of framing legislation, as highlighted in the previous article in this series.

Even cutting through all the political noise – when criticism of legislation boils down to disagreements over policy rather than the drafting of regulations, underlined at the start of this series – mistakes do occasionally creep through in legislation, including those corrected by last year’s emergency non-domestic rates Bill, and the criticisms levelled by Holyrood’s Delegated Powers and Law Reform Committee against the drafting of secondary legislation.

Amid the noise of party politics and the backdrop of rising complexity, what steps can be taken to further improve the way that Scotland writes its laws? Does Holyrood’s committee system need to be strengthened or is there a requirement for more resources for the Parliamentary Counsel Office when it comes to drafting legislation?

Setting aside more time for scrutiny

Land reform activist Andy Wightman, who served as an MSP for the Lothian region from 2016 to 2021, calls on the Scottish Government to publish more Bills in draft form, so feedback can be given and problems spotted before proposals enter Parliament. “The Land Reform (Scotland) Act 2003 was published as a draft Bill, or a ‘white paper’, as the Scottish executive was still using Westminster’s language,” he explains. “That was an exemplary exercise – on the right-hand page you had the draft legislation, and then on the left-hand page you had the accompanying explanatory notes.

“That was hugely educational for a lot of people who were engaged in the parliamentary process early on. We’ve got to a stage now where I think more people – including policy advisers, journalists and some MSPs – need to have a better grasp of the legislative process, so problems can be fixed early on. By the time you get to stage two, you’re in a very political environment, and if you’re trying to fix things at stage three then it’s even worse because MSPs have already been told how to vote by their party managers.”

Michael Clancy, director of law reform at the Law Society of Scotland, also underlines the need for rigorous pre-legislative consultation. He highlights the low number of responses to some consultations and calls on wider society to take a greater interest in shaping legislation.

Dr Andrew Tickell, head of the Department of Economics and Law at Glasgow Caledonian University, encourages politicians to consider the long-term implications of legislation. “I think governments often look at how things are right now and ask, ‘Will this new framework work for what I’m trying to achieve right now?’ They don’t necessarily ask, ‘How could this power be used 10 years from now for a policy that isn’t currently the topic of the day in parliament or in the media?’”

Structural changes within the Scottish Parliament

Former senior civil servant Jim Gallagher, who now chairs the Our Scottish Future thinktank, highlights structural changes that could be made to improve parliamentary scrutiny. “The first is to make it clearer that being a parliamentarian who scrutinises is a legitimate ambition and not a career-ending option. Far too many of our politicians come in thinking that the only thing that Parliament is there to do is to make them ministers.

“We have far, far too many ministers – a ludicrous number of ministers – and one of the consequences of such a large number of ministers is that they all want to have something to say all the time, hence the plethora of announcements and strategies and consultations and so on. Having a smaller number of more effective ministers would free up talent for the scrutiny function.”

Jim adds: “The second would be to free up from political control the election of conveners of committees. There’s a problem here, of course, because the convenorships are rationed out by party to be balanced, but the result is that the governing party effectively controls the choice of committee chairs. That’s got to stop if we are to have genuinely independent committees.” Instead, he suggests the D’Hondt method could be used.

Michael suggests: “Parliament could split stage three into two parts as a procedural process for dealing with further and better consideration of a Bill at an advanced stage. There is provision in the Scottish Parliament’s standing orders for stage three to take place over more than one day, so it could be more structured, with more time taken – because time is the big issue in all of this. Finally, post-legislative scrutiny would highlight what worked, what did not work and how to fix any legislative problem.

“We need to acknowledge that MSPs should not be sitting at all hours of the night determining legislation. That’s not necessarily the best time of day to be looking at complex pieces of legislation. Instead, it might be better to have longer periods of time at other stages in the passage of a Bill to make sure all the elements are as good as they can be.”

More time rather than more hands

Last September, a report from Holyrood’s Standards, Procedures and Public Appointments Committee underlined the heavy workload faced by the Scottish Parliament’s committees, highlighting the sheer amount of primary and secondary legislation they are required to scrutinise. The report called for parliament procedures to be changed so more time could be set aside for post-legislative scrutiny to make sure laws were delivering their objectives.

Responding to questions about the drafting of legislation, Graeme Dey – parliamentary business minister – says: “The Parliamentary Counsel Office is resourced to match the Parliament’s capacity to consider legislation. In practice, having more time to draft legislation would likely produce more benefit than having more hands, but a balance always needs to be struck between the time available for drafting and the time needed for proper scrutiny.”

He adds: “Parliamentary Counsel always aim to make legislation as clear and accessible as possible. The multi‑layered legislative landscape inevitably limits the scope for systematic simplification through traditional consolidation, but there are real opportunities to make the law easier to understand through better presentation and explanation. The move to Parliamentary Counsel leading the drafting of explanatory notes has already improved readers’ understanding of how new legislation fits within existing structures.”