|HOW THE SCOTTISH PARLIAMENT SHOULD WORK|
The Royal Society of Edinburgh is pleased to respond to the Consultative Steering Group on how the Scottish Parliament should work. The RSE is Scotland's premier learned society, comprising Fellows elected on the basis of their distinction, from the full range of academic disciplines, and from industry, commerce and the professions. This response has been compiled with the assistance of a number of Fellows, several of whom are experienced in constitutional law.
The Royal Society of Edinburgh is a source of independent, apolitical advice and can call upon a wide range of expertise from amongst its multi-disciplinary Fellowship. Over the coming months we will be working to ensure that the members of the Scottish Parliament are aware of the great range of expertise available to them from the RSE in many of the fields which the members will require to consider, not least education and science and technology.
In this context, the Society has recently submitted a memorandum to the House of Commons Select Committee in connection with its Inquiry into the Scientific Advisory System. In this memorandum the Society expressed its concern that, despite the recommendations of the Garrick Report, the Scottish Office will not be appointing a Chief Scientific Adviser to the Secretary of State for Scotland. Prior to the arrival of the Scottish Parliament further thought will need to be given to the Scientific Advisory System in Scotland and this is one issue which must be discussed during the current consultation on how the Scottish Parliament will work.
A significant omission from the consultation document is any mention of the limits imposed by the devolution settlement itself. There will be limits internal to the UK which prescribe the matters on which the Scottish Parliament will and will not be competent to legislate. There will also be the limits external to the UK imposed by EU law, by the European Convention on Human Rights and, increasingly, by other international treaties and conventions to which the UK (a single state for international purposes) is a party such as the World Trade Organisation agreements. All sovereign parliaments are nowadays subject to the second category of constraint. The difference, in the case of the Scottish Parliament, is that its failure to comply with those constraints will cause the UK to be in breach of its international obligations. In the case of EC/EU obligations, in particular, this could lead to penalties. Full awareness of these limits is essential if the Scottish parliament is to establish the confidence of the public whose views it wishes to take into account.
SHARING THE POWER
How can the Parliament best organise its work to take the views of the public into account, both in its initial organisation and its ongoing work?
The views of the public can best be obtained by giving advance publicity of what is proposed and an address to which views can be sent. Only when the public’s views are known can Parliament take them into account. It is appreciated that, while simplicity is desired, legislation for many specialised subjects demands complicated and intricate rules and prior discussion that may require an in-depth knowledge that the public will not have. Lists of bodies that have particular interests should be built up so that they can be alerted and consulted when matters relating to those interests are affected. The public should be encouraged to attend debates with minimum formalities and security processes required for such attendance. Public transport from central points such as railway stations and bus stations should be available.
Parliament should be prepared to go out to the people and must not be seen as an exclusively Edinburgh institution. As far as possible Parliamentary meetings, wherever they are held, should be held at times and in places facilitating attendance by members of the public and Committees should be encouraged to meet in places outside Edinburgh. Short, well-written brochures explaining how Parliament works and the legislative framework, UK and internationally, within which it operates should be produced and made widely available. The Parliament should also make use of the Internet, having a home page containing at least all basic information about the Parliament and the text of all its official publications. Proceedings should be broadcast on both television and radio, and every effort should be made to provide media facilities and to encourage properly informative press coverage. The Parliament should also encourage visits, in particular from educational institutions, but also by other groups. A programme of internships with MSPs and the parliamentary officers would help both the dissemination of knowledge about the Parliament and the exposure of the institution to outside thinking.
What arrangements should there be for involving civic society, women's groups, people from ethnic minority communities, people with disabilities, business and the general public (taking account of resource implications)?
The Parliament might wish to provide facilities such as lecture theatres and seminar rooms in which outside organisations could hold conferences and similar events dealing with public policy issues being or to be addressed by the Parliament or which ought to be so addressed. Such meeting rooms would also enable MSPs to meet groups of constituents or other members of the public. Such facilities might be made available at subsidised but nonetheless reasonably remunerative rates to non-commercial organisations. We assume that provision for the mobile impaired, the hard of hearing and other disabled groups will be made during the design and construction of the Parliament buildings.
How might the Parliament reach those groups not normally involved in the political process?
It is difficult to reach groups not normally interested in the political process except by wide publicity and by generating the feeling that comment is welcomed rather than resented, and that officials are prepared to meet and listen to the views of the public. Theoretically it is a simple matter to consult groups which are likely to have a close interest in the subject under consideration (the extensive Consultation list annexed to the Scottish Office letter contains the names of a large number of minority groups). But in situations where the party in power has campaigned for election on clear-cut policies, a minority group which is opposed to these policies may conclude that there is little to be gained from taking the trouble to prepare a carefully researched and considered response to the consultation. The very short periods allowed for consultation in relation to law reform proposals in recent years may reflect an assumption made by government that significant changes in policy are unlikely to be brought about as a result of consultation.
What sort of ethos should Parliament develop?
The Parliament should have a broad, listening ethos followed by action that it is willing publicly to justify. We would wish to see a co-operative approach, not dictated by ideology or a party-political, confrontational attitude, where all members will view problems and seek solutions from the standpoint of the general benefit and general welfare rather than any party or group benefit. The ethos should be an open one such that there are transparent ways in which Parliament and its members can be approached by interested individuals and groups, and that these methods of approach are themselves sufficiently publicised and available (for example, in post offices, social security offices, schools, colleges and universities, and shopping and leisure centres). There should be a sufficient telephone answering service, plus fax and email facilities and all published documents should contain the address and telephone number of an Ombudsman's Office to which all can apply for assistance and clarification.
It is important that the Parliament has good methods of co-ordination with the Parliament at Westminster, particularly in those areas where international or European Union obligations affect areas of the Scottish Parliament’s competence.
How might Parliament's ethos be reflected in the Parliament's traditions and ceremonies?
The Scottish Parliament should be sparing in its ceremonial affairs. Its activities should be plain, modest and inexpensive but, at the same time, all sittings must be conducted with regard for the dignity and honour of the institution. An attempt may be made to revive the ceremonies of the old Scottish Parliament. This would seem to be a mistake as the 1707 Parliament was not without its detractors. Ceremonies should be adopted such as are appropriate for the 21st century, using the experience of other recently created Parliaments. It should aim to produce systems that Westminster might wish to follow rather than to copy what was appropriate to earlier times. On the other hand it is important that the opening and closing of the sessions of Parliament be conducted with some ceremony. The Lord Lyon and the Heralds should be consulted and must be involved.
How might MSPs be made accountable to the electorate other than through the election process?
An Office of Accountability needs to be established embodying the work of the Ombudsman. To be credible, this Office of Accountability needs to be independent of the Parliament and to have access to independent, legal and other advice. It should develop its own instruments of search, analysis and investigation. It should report annually and publicly to the Presiding Officer.
Should the MSP provide regular feedback to the electorate on the work of the Parliament and what form could this take?
To remain accountable and incorruptible, the Parliament must report on its proceedings and its proposals in simple language covering specifically aspects of time and cost. MSPs should be required to produce an annual report issued free of charge to every constituent. This should provide a record of attendance, voting and speaking in Parliament, plus a note of outside engagements and interests of all kinds, including consultancies, etc. This should demonstrate the balance, timewise, which each MSP spends on work in the House, in Committees and on constituency work. Each MSP should also be provided with an Internet home page on which this and other information could be recorded.
Should there be a code of conduct for MSPs and if so what should it cover?
It is essential that there be a stringent Code of Conduct making clear that the public expects all MSPs to have as their object the general good of the people of Scotland, and to show an exemplary standard of devotion to duty, honesty and moral behaviour. The code should cover at least the ground dealt with in the Nolan Report on Westminster MPs.
What arrangements should be made for the registration of MSPs' interests? Should there be regulation of the process of lobbying of MSPs?
The main enemy of accountability is unreasonable influence wielded by pressure groups and special interests. A register of MSPs’ interests must be opened, based on that in use at Westminster, and full and frank disclosure of the information required must be compulsory, not voluntary, under pain of being unseated. It must in particular disclose all benefits received by an MSP and his/her staff, office or constituency party, in cash or in kind, including receiving from any person or organisation any kind of help or benefit in connection with election, constituency and parliamentary work. This register should be not only revealed to Parliament, but openly published in a list made freely available. The public should be aware that a Member’s opinion may have been influenced by retainers received from pressure groups or other interested bodies, or by connections with an industry who may be paying for his/her support. Also, an accusation of misleading Parliament should be as seriously regarded at Holyrood as at Westminster, and truth in debate respected.
Taking the current Westminster arrangements as a starting point, would you like to see the Scottish Ministers accounting to the Parliament in different ways?
The present accountability of members of the Westminster Parliament through such means as Question Time and the Committees of the House seems to be suitable for the Scottish Parliament. There should be procedures for calling them to account in appropriate circumstances.
ACCESSIBLE, OPEN, RESPONSIVE
What steps might the Parliament take to develop an accessible culture?
How can it make its working practices transparent and understandable?
Working practices and procedures should be as straightforward as possible.
How should it ensure that people have information about the Parliament? Should there be special arrangements put in place for schools? Should there be special arrangements for other sectors of Scottish society?
It will require a considerable process of education to persuade the electorate to take a day-to-day interest in what Parliament is doing. A short television slot of its more interesting proceedings might be sustainable but a heavy burden will fall on the Scottish broadsheets of educating the Scottish public in parliamentary affairs. Information needs to be disseminated by the issue of White Papers, Green Papers, Bills, reports of debates, reports of Select Committees’ findings and recommendations, etc. It is essential that plainly written, appropriate summaries of such documents are produced. "Executive summaries" of all legislation created by the Parliament should be freely available and the full text of such legislation should be made available at modest cost. It may be worth considering the provision of a subsidy for the Scottish equivalent of Hansard.
The Parliament building should also be as open as is practicable to members of the public. There should be schemes for members of the public in groups and parties of schoolchildren to attend parliamentary sessions and committees of the House to enable them to understand the operations of Parliament. Meeting space should be made available as noted above.
What committee structure should the Parliament create?
There will need to be at least two kinds of committees – see next question. Both should reflect the balance of parties in the Chamber as a whole. There may also be a need for time-limited ad hoc committees to examine specific areas and, if necessary, to suggest legislation.
The authority of committees would be enhanced if they were to have an unqualified right to cite unwilling witnesses to appear before them (Clause 23(5) of the Scotland Bill states that the power of a committee or a subcommittee to require the attendance of witnesses must be expressly authorised).
Should there be separate select and standing committees or should there be single committees investigating the work of government departments and scrutinising legislation?
Standing Committees should be concerned with cross-departmental issues and general issues that are always with us (in a manner akin, for instance, to the Science and Technology or European Communities Committees of the House of Lords). Standing Committees should also have the power to initiate legislation if necessary. Both types of committee ought to be able to co-opt specialist assistance when required, to receive representations and to call evidence from outside the Parliament.
Bearing in mind that this is to be a single chamber Parliament without the scrutiny of legislation that comes from a bi-cameral legislative body, it will be crucially important to ensure that legislation introduced into the Parliament is properly drafted.
Should there be committees reflecting the structure of The Scottish Office or should they cut across the work of Departments?
There should be a structure of Select Committees matching the departments of the Scottish Office but a difficulty arises with departments, e.g. Industry and Trade, Social Security, which are reserved to Westminster. If a UK Department operates in Scotland it should be scrutinised by the appropriate committee of the Scottish Parliament and not just by Westminster.
How should committees initiate legislation?
The initiation of legislation by committees is an attractive option which ought to carry more political clout than the Westminster Private Member’s Bill (although there will have to be safeguards against capture of a committee by sectional interests, whether within the Parliament, the Scottish Office or elsewhere). However, in the past useful pieces of legislation have been effected as a result of Private Member’s Bills and further consideration should be given for such a power to be available to individual MSPs. This is particularly important for legislation perhaps arising from a Public Inquiry or a Fatal Accident Inquiry that may not be in the political interests of the government of the day to support.
What role might non-MSPs play in committees?
Non-MSPs could assist the committees by supplying information, either in writing or orally as when the House of Lords Select Committees take evidence, but it is the MSPs alone who must take responsibility for supervision of Departments and of legislation.
How might such pre-legislative scrutiny be undertaken?
There is a need for intensive pre-legislation scrutiny of legislative proposals, not simply for the purpose of determining whether the proposals are desirable as a matter of policy, but also for determining what scope, if any, the Parliament has for legislation in the field in question. Effective scrutiny of legislative constraints implies a willingness on the part of Committee members to come to terms with often quite complicated legal issues - to devote time to understanding those issues and contribute to writing reports that will explain them to their fellow MSPs. It is also likely to involve a certain amount of expense in collecting and sifting evidence and, where necessary, hiring specialist advice. This should be budgeted for.
The procedures of the Scottish Law Commission - publication of a consultative document followed by publication of a report together with a draft Bill - provide a model for pre-legislative scrutiny. In this case, there is a need for the initiating body to take time to research the relevant law thoroughly. The main merit of Law Commission recommendations is a detailed examination of the relevant law and of the options for reform.
How might the views of interest groups and the impact of new policies on them be taken into account before and during the legislative process?
The practice of publishing White Papers and Green Papers explaining ideas being considered should be continued, and adequate time afforded for persons to submit observations. The Internet again provides an easy way of making draft Bills available for public comment, along with explanatory material. Comments might be invited by email as well as by letter and oral representation. The UK Government’s use of the Internet so far is to be applauded, and the ScottishParliament should build upon that practice and experience. Conferences and seminars might be held at the early stages of formulating the policy to underlie legislation.
Topics on which the Scottish Parliament may wish to legislate may include highly technical and complicated topics, which will require prolonged and detailed consideration by experts. It is important that the views of those who are going to have to work with, and operate, the legislation, if enacted are taken into consideration. All legislation contemplated should therefore be referred to appropriate bodies such as the Scottish Law Commission, the BMA, the police, the universities, the Law Society and voluntary bodies, for comment and criticism.
During the passage of a Bill, the appropriate committee should continue to receive representations and adequate time must be allowed for the amended Bill to be considered. Defects in Bills are often due to amendments having been made without adequate opportunity to reconsider the Bill in its entirety.
What information should the Parliament take into account when considering proposals (e.g. financial implications, equal opportunities implications, environmental impact, implications for business)?
Parliament ought to consider all the implications mentioned - public finances, equal opportunities, environmental impact, implications for business (especially small and medium-sized enterprises) - and also human rights implications. These should be presented as a written brief accompanying the Bill. Comments on these matters should be particularly invited at the stage of pre-legislative scrutiny.
How can the Parliament ensure that legislation is properly considered?
First, it is important to recognise the limits of the Parliament’s legislative powers as noted in the Introduction. Secondly, proposed legislation should be fully considered both on the floor of the house and by making use of the widest range of expertise available as noted above. Finally, if the Parliament imitates the Westminster practice of overloading the legislative programme, the same difficulties are likely to be experienced.
Should existing legislation be reviewed and if so how? What factors might be taken into account (e.g. financial implications, equal opportunities implications, environmental impact, implications for business)?
Every proposal for legislation should start by discovering what the common law is on the matter, andwhat the existing legislation, if any, says. That is the existing state of the law, and only then can anyone start to decide whether there is need for change and what kind of change. Review of existing legislation may be more attractive to politicians than the qualified consolidation regime at present in force at Westminster, but such a review procedure, taking a wide range of factors into account, might absorb too large a share of scarce resources to be acceptable.
Should there be electronic voting?
It is plainly desirable that, subject to budget restraints, the Parliament should opt for working practices that save time but one would wish to be certain that any system adopted was absolutely foolproof against mistake, cheating, double-voting, etc. Electronic voting would be a more modern and dignified way of voting. It is probably desirable that a member should be in the chamber if he/she is to vote. Details of seating and layout are clearly for those planning and designing the building, but an individual desk for every member seems desirable.
How can it make the best use of Information Technology, the Internet, electronic mail?
Comments have already been made about the use of the Internet and email but these should not be the sole means of communication used by the Parliament, since large sectors of the population of Scotland do not have access to the technology.
What other Best Practice could the Parliament draw on?
Much of the foregoing ought to ensure that legislation has been properly considered before it enters the parliamentary arena. A major problem is the absence of a second or revising chamber. This will make it all the more important that there is a proper procedure in the Parliament to ensure that all parts of a Bill do receive parliamentary consideration. Apart from First, Second and Third Readings and committee stages, might there be published with a Bill a proposed parliamentary timetable, or some sort of procedure to enable starring of parts of Bills for debate, all of which information would be in the public domain and upon which there might be public representation?
What else should it take into account to ensure that the Parliament is open to all?
As already noted, if the Scottish Parliament is to be accessible to the people, its meetings should occur at times and places which enable the public to attend, rather than those which are convenient for the members.
How might the language and other practices of the Parliament be inclusive/nondiscriminatory?
Rules on language ought not to be excessively formal, either in requiring particular ones to be spoken or in preventing others being used. There are languages other than English, Scots and Gaelic to be taken into account: for example, Urdu. A key issue is the participation of ethnic minorities.June 1998
Further information is available from the Research Officer, Dr Marc Rands