How the Scottish Parliament will work

Since the turn of the year there has been a noticeable increase in interest in the Scottish Parliament by the media.  This is to be welcomed because we are now only some 2½ months away from the first elections for the new Parliament and it is clear that there remains an enormous lack of awareness as to what it all means.

The electoral system which has been developed whereby we will all have two votes remains a mystery to most Scots.  Indeed, the Government has agreed to spend £2.5m educating voters about the system.  The general level of awareness in the business community does not appear to be much better if the recent findings of a survey conducted by Market Research United Kingdom are accurate.  The survey conducted interviews with the director or senior manager responsible for business development or general management in 500 private and public sector organisations throughout the UK.  All major business sectors were surveyed and each organisation employed 150 or more people.  Around two-thirds of the respondents confirmed that they had little or no awareness of the responsibilities of the new Scottish Parliament or how the Parliament might impact upon their organisation.  Yet, of the survey sample 89% had an operational base in Scotland, 75% had suppliers based in Scotland and 92% had customers based in Scotland.  Is the Scottish legal profession well placed to advise these clients who may come looking for advice and guidance?

The Scotland Act 1998 which sets out the framework for the Parliament received the Royal Assent in December 1998.  Whilst the Bill received quite literally hundreds of amendments as it made its way through Parliament, the general scheme of devolution remains as set out in the White Paper Scotland’s Parliament” published in July 1997.  This article will not rehearse the detail of the White Paper or the Scotland Bill which was reported in the February 1998 issue of the Journal.  The Scotland Act does not spell out in detail how the Parliament will function and the legislative procedures which it will follow.  It has always been recognised that the Parliament itself should take these important decisions.  Equally, it has been recognised that it would not be practicable to ask the Parliament to consider all these matters from scratch.  To do so would require an extremely long lead-in period before the Parliament could function fully.

To prepare the groundwork the Secretary of State for Scotland established a Consultative Steering Group on the Scottish Parliament (CSG) in November 1997.  Its membership comprised senior representatives of all four major political parties as well as a wide range of civic groups and other interests.  The remit of the CSG was:

• to bring together views and to consider the operational needs and working methods of the Parliament
• to develop proposals for the rules of procedure and standing orders which the Parliament might be invited to adopt
• to prepare a report to the Secretary of State by the end of 1998, to inform the preparation of standing orders.

The CSG was chaired by Henry McLeish, Scottish Office Devolution Minister, and its report was published in January this year.  This report represents the unanimous views of CSG and demonstrates a unique level of cross-party co-operation to ensure that the Parliament has adequate operating procedures and develops a culture of public accountability.

Key principles of the CSG

A recurring theme throughout the CSG report is the emphasis placed on developing an open, accessible and, above all, participative Parliament.  The following key principles were adopted:

• The Parliament should embody and reflect the sharing of power between the people of Scotland, the legislators and the Scottish Executive (the Scottish Government).
• The Scottish Executive should be accountable to the Parliament and the Parliament and Executive should be accountable to the Scottish people.
• The Parliament should be accessible, open, responsive and develop procedures which make possible a participative approach to the development, consideration and scrutiny of policy and legislation.
• The Parliament in its operation and its appointments should recognise the need to pursue equal opportunities for all.

The CSG recommended that equal opportunities should be mainstreamed into the work of the Parliament and the Scottish Executive.  Mainstreaming has been defined by the Equal Opportunities Commission as the integration of equal opportunities into all policy development, legislation, evaluation and review practices.  MSPs and all officials are likely to receive training on equal opportunities with the emphasis on policy appraisal.  The Parliament is likely to establish an Equal Opportunities Committee to ensure that equality plans and targets are outlined for each Committee and effective monitoring systems are put in place.

Role of Parliamentary Committees

The Scottish Parliament will be unicameral.  Its Committees will therefore have an important role to play in the preparation, scrutiny and revision of legislation.  The CSG report recommends that Committees be given substantial powers to initiate legislation, scrutinise and amend the Scottish Executives proposals and have wide ranging investigative functions.  It is proposed to establish all-purpose subject Committees which combine the role of Westminster Standing and Select Committees.  Committees would:

• consider and report on policy and administration of the Scottish Administration
• conduct enquiries into such matters and issues as the Parliament may require
• scrutinise primary and secondary legislation and proposed European Union legislation
• initiate legislation
• scrutinise financial proposals and administration of the Scottish Executive (including variation of taxes, estimates, appropriation and audit), and
• scrutinise procedures relating to the Parliament and its Members.
• In all cases, Committees would report to the Parliament with recommendations.

Committees of the Parliament

It is generally accepted that it will be for the Parliament, once established, to make the final decision on its Committee, their structure and remit.  However, taking account of the importance of devolved matters, there will undoubtedly be important subject Committees dealing with matters such as health, education, home affairs, agriculture and fisheries, planning and environment, and economic development.  At this stage it is not possible to predict the number of such Committees or how the individual remits might be grouped.  In addition to these subject Committees it is envisaged that there will be a number of Committees whose functions are fundamental to the running of the Parliament:

• Business Committee to programme the business of the Parliament, timetable progress of legislation and the daily order of business and propose the remit, membership, duration and budget of Parliamentary Committees.
• Procedures Committee to consider the practice and procedures of the Parliament and to monitor, review and advise upon the Parliament’s Standing Orders.
• Standards Committee to consider matters relating to the conduct of MSPs - this Committee will undoubtedly be assisted by the report from the Code of Conduct Working Group set up by the CSG.
• Audit Committee to consider reports by the Auditor General for Scotland and to monitor financial propriety within the Parliament and Executive.  In addition the Audit Committee is likely to be involved in value for money studies commissioned by the Auditor General.
• Finance Committee to comment on financial issues and to scrutinise the financial performance and budget proposals of the Executive.  It is envisaged that this Committee will also support the Business Committee in co-ordinating the progress of financial legislation.
• European Committee to sift relevant EU-related documents and to debate wider EU topics.  In view of the amount of European legislation which will fall within the remit of the Parliament, it is unlikely that this Committee will be able to undertake detailed scrutiny of all European matters and it will require to carefully consider its most effective method of working.
• Equal Opportunities Committee to develop and monitor the delivery of equal opportunities policies with the aim of ensuring mainstreaming of equal opportunities.
• Public Petitions Committee to promote action, where appropriate, on public petitions submitted to the Parliament and to inform petitioners of the action and decisions the Committee had taken within 42 sitting days of receipt of the petition.
• Delegated Legislation Committee to examine provisions within Bills conferring powers to make subordinate legislation and to examine subordinate legislation brought before the Parliament to assess whether it is intra-vires.

Membership and operation of Committees

It is proposed that the Business Committee will make recommendations to the Parliament for the establishment, terms of reference, budget, membership and duration of Committees of the Parliament.  It is hoped that in making these recommendations the Business Committee will take into account the expertise of MSPs, any preferences expressed by them, requirements to ensure balance of political parties and the law in general (eg regarding equal opportunities).  In addition, any MSP should be able to propose the establishment of a new Committee and this would require to be considered and reported upon by the Business Committee.

The CSG report makes the following recommendations in respect of Committees:

• Committees can establish Sub-Committees with the approval of the Business Committee.
• Only MSPs may be full voting members of Committees.
• Each Committee should have between 5 and 15 members.
• The convenorships and composition of individual Committees should reflect the balance of parties within the Parliament.
• Where convenors or members retire from Committees they should be replaced, again having due regard to the balance of parties within the Parliament.
• A quorum of three members is necessary both for consideration of business and for voting.
• Committees should be authorised to exercise the power provided for in Section 23 of the Scotland Act to call for witnesses and documents.
• Ministers can participate in the work of a Committee when considering legislation proposed by the Executive but should not have voting rights on the Committee.  The same provision should be extended to any other MSP responsible for a piece of legislation before the Committee (eg a Private Members Bill).
• The Parliament should identify Committees which can be permanently based in a location other than Edinburgh.  All subject Committees should be encouraged to meet around Scotland.

Wider participation

The CSG report deals in detail with the principles of openness, accessibility and responsiveness and the development of a participative approach envisaged by the Scottish Constitutional Convention and in the White Paper.  Various methods of involving wider participation in the work of the Parliament are identified, including the establishment of expert panels which include non-MSPs, and the possibility of co-opting non-MSPs onto Committees as non-voting members.  It is stated that such external appointments ought to be made on merit.

Emphasis is placed on early involvement of relevant bodies from the outset, including identifying issues which need to be addressed, contributing to the policy-making process and the preparation of legislation.  The report recognises the perception that once detailed legislative proposals have been published, in whatever form, it is extremely difficult for outside organisations to influence changes to those proposals to any great extent.  As mentioned, the CSG report does emphasise the need for the Parliament to be open and accessible.  To achieve these aims it will be essential that relevant information about the business of the Parliament is made available promptly and in a way that is readily accessible.  Here the early signs are promising.

The Scottish Office has developed excellent IT facilities which it has used to great effect throughout the devolution process.  Helpful commentaries on the White Paper, The Scotland Bill and The Scotland Act have been published on the Scottish Office website and we expect that the Parliament will benefit considerably from the expertise which the Scottish Office has in using the internet to publish relevant information.

This willingness of government to consult openly is most welcome and should present opportunities for members of the legal profession who are not engaged in full time politics to play a major role in the formulation and development of legislation for the Scottish Parliament.  The Law Society of Scotland has a wealth of such talent to be found on its many Law Reform Committees.  The Society has over the years established a considerable reputation for its law reform proposals and the quality of the briefings which it prepares for Members of Parliament.

In the next article we will give further consideration to participation in the parliamentary process particularly with regard to the making of legislation.

Niall Scott and Alan Boyd are members of McGrigor Donald’s Scottish Parliament Group