Our constitution, July 2012: public scrutiny of legislation

“Public scrutiny of legislation; right of committees to conduct hearings, pre-legislative consultation; active petition system; guaranteed rights of opposition.”

You may ask, why do we need to make such a point of this? This is what we already do in Scotland. Why would we stop?

“There are two things in the world you never want to let people see how you make ’em: laws and sausages.” – Leo McGarry, The West Wing, “Five Votes Down”.

I haven’t heard from Better Together voters who don’t like the idea of a constitution for Scotland.

But Yes Scotland voters who don’t like the idea of drafting a constitution for Scotland prior to the referendum or eve independence day, usually say something along the lines of: “Don’t you trust the SNP?” and when I say no, suggest that this is partisan. (Examples in comments at Our constitution: beyond yes and no and A New Claim of Right for Scotland.)

But I don’t trust any political party that far. Or any government. There is nothing special about the air of Scotland that makes politicians more anxious to have legislative work completely open to scrutiny: it’s just that the law requires it. The law that was passed at Westminster: the Scotland Act.

Public scrutiny of legislation

In the Scottish Parliament, this is a three-stage one-chamber process, described in Chapter 9 of the Parliament’s Standing Orders:

The introduction of a Bill in the Scottish Parliament (SP) is roughly equivalent to the First Reading stage of a Bill in the UK Parliament, but more is required of the member in charge of the Bill in the Scottish Parliament, in the sense of accompanying documents. This is in order to give the members of the committee more information.

Stage 1: After the committee has prepared the legislation, the Parliament will debate and vote on it and if agreed, it will proceed to Stage 2. The latter part of Stage 1 is equivalent to the Second Reading in the UK Parliament.

Stage 2: Here the Bill is referred back to the committee for detailed consideration. It is open to any MSP to propose an amendment but only the committee can vote on it. At the end of Stage 2, if the Bill has been amended, the Clerk of the Parliament arranges for the amended Bill to be printed and published.

Stage 3: Every MSP has an opportunity to consider and vote on the Bill. This stage is the equivalent of the Report and Third Reading stages in the UK Parliament. If passed, the Bill is ready to be presented by the Presiding Officer for Royal Assent.

Standing Orders set time limits for this process to occur. Bills either fall at Stage 1 or Stage 3.

These arrangements in the Scottish Parliament are designed to simplify the process. It is argued that the SP’s committees have a more prominent role and also increase the chances of participation by the public. Legislative proposals from the [government] must be accompanied by a memo showing what public consultation has been undertaken. (Alistair McConnachie, Independent Green Voice)

As we saw with the gay marriage consultation, and as various inexperienced people complained about in the independence referendum consultation, all legislation allows for consultation – and may draw huge responses. (In the 13 years of the Scottish Parliament, the three biggest responses have been on the independence referendum, on gay marriage, and on the smoking ban.)

All three stages of debate can be viewed via the Parliament website. Committees are open to the public. Anyone can give written evidence to the committee. Notice that a bill is to be introduced must be published in the Business Bulletin, and as soon as the bill has been introduced it must be published on the website/made available in print. Bills can be introduced by the Government, or by an MSP if they can find at least 12 other MSPs to support them, or even by an individual or an association who is not an MSP: Private Bills for the Scottish Parliament are unusual, but allowed for. Proper time has to be allowed for each stage. Everything happens in public.

But all of this is set down not by Constitution but by Westminster legislation and by Holyrood’s standing orders.

To pin this down in a Scottish Constitution would make no difference in a devolved Scotland, but would ensure that in an independent Scotland, a government wanting to push a bill through fast could not argue “that was legislation passed by Westminister when we were in the UK: we are not now”.

There have been specific instances where “national security” was claimed to be at risk, where legislation was hastily written and as hastily passed. This is an excuse not open to a devolved Scottish government, but we’ve seen how it can become a temptation to a national government.

right of committees to conduct hearings

Committees must have the right to conduct hearings, to request evidence, to take testimony, to ask inconvenient questions – and to do it all in the public eye with parliamentary privileege of free speech. This should be guaranteed by constitution.

guaranteed rights of opposition

Any MSP has the right to vote or to abstain from voting as they choose. A political party obviously has the right to expel a member who votes against their party line. But there are quite explicit stories told of how the Party Whips at Westminister will enforce a vote along party lines – stories of “blackmail, verbal intimidation, sexual harassment and physical aggression“.

The right of an MSP to dissent from their party without any other penalty than being expelled from party membership, ought to be protected by Constitutional right of opposition.

Government ministers do not vote or speak against government policy. But any MSP appointed as a Minister can resign from government and then vote against. To facilitate this, should the Constitution mandate that ministers get paid no extra salary for taking part in government?

active petition system

I’ve left this till last because I think it’s the most complicated. Famously, David Cameron promised he would hold a debate in the House of Commons for any petition that got more than 100,000 signatures; infamously, he then declined to debate NHS Reform when Dr Kailash Chand’s e-petition hit 100,000 and continued to refuse a debate while the petition got to 179,423 signatures until its closing date.

Cameron was obviously in the wrong twice over – he’d made a committment to debate petitions that reached 100,000 signatures, and then faded on it: and although I think it’s a mistake to specify an exact number that must be reached before government attention can be guaranteed, it was very clear that the NHS “reforms” were attracting huge public interest, most of it negative.

Equally, the anti-gay marriage forces in the US proved that with enough funding and enough homophobic passion – especially when tied into religious networks – it is possible to get signatures even for something as clearly foolish as repealing marriage.

Nonetheless, a petition – whether e-petition or on paper – is the one means by which any individual, without any legal training or special access to power, can bring a situation to the attention of the government. (Problems regarding individuals can be dealt with by the individual’s MSP. General injustices usually can’t unless the MSP is sympathetic – or is convinced that they’re losing votes: in which case you need a petition or the equivalent again.)

A low number of signatures does not necessarily mean it’s not of interest; it may simply be a matter of keen interest to only a minority of people, or the person who is raising the issue may not be very good at promoting their petition and explaining how it matters. A large number of signatures may turn out to have been harvested by (for example) the Catholic Church pre-printing postcards with their desired petition and sending them out by the thousands to every parish for mass-goers to sign and be collected for return. (Yes, they tried that. And for what it’s worth, about 84% of mass-going Catholics in Scotland declined to sign.)

The Scottish government has a committee responsible for examining petitions. I think it shouldn’t be specified by number or by percentage whether a petition is of interest, and obviously to have a standard form of e-petition that makes some confirmation that the signature is genuine. I think public examination of petitions by committee on a regular basis is the way to go – but again: I think this is a a tricky area in which to specify numbers.

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Filed under Elections, Epetitions, Scottish Constitution, Scottish Culture, Scottish Politics

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