19 March 2012

"Not a model of draftsmanship either in structure or in expression..."

"Not a model of draftsmanship either in structure or in expression". That was Lord Justice Clerk's Gill's assessment of an Act of the Scottish Parliament in court last week. The case is just the latest in which Holyrood legislation has been set against human rights norms - here rights to property - and been found wanting. Although at first sight the issues involved seem off-puttingly technical, Lord Gill's judgment smartly summarises the statute challenged, the reform it affected and the rationales advanced in Holyrood in 2003 for it.

To introduce the point of contention very briefly, the Agricultural Holdings (Scotland) Act 2003 intervened retrospectively to render ineffective legal arrangements used by landlords to deprive agricultural tenants of security of land tenure. The 2003 Act, argued the litigating landlord, violated his right to property under Article 1 Protocol 1 of the European Convention and consequently was outwith Holyrood's powers. Extensive reference is made in the judgment to comments made by parliamentarians in the course of their speeches in the chamber and in committees. In his dry, understated way, Gill is also rather scathing about the reasoning proffered by former Labour MSP and Deputy Environment Minister Allan Wilson.

Last week, I quoted Joan McAlpine to the effect that she - and I'd guess other MSPs - basically think of Holyrood as a quasi-sovereign body, that shouldn't have to trouble itself over much with legal technicalities. Democracy on their side, and supported by popular election, surely their deliberations ought to prevail whatever? At least under the present dispensation, no so. That is not to say that that parliamentarians exhibit no sensibility for the limits of their powers - many are acutely conscious of their moderate to non-existent jurisdiction over decisions in welfare, foreign affairs, defence and so on - but the constraints on legislation within areas of devolved consciousness do not always seem adequately to have been attended to. Treating them as technical points of tedious detail, as naught before their political sway, our tribunes seem to prefer to defer to the reassurances of Ministers - and whizzbang - enact anyway.

More importantly perhaps, this vice doesn't solely relate to those bodies of norms - human rights, EU law, reserved matters - which constrain Holyrood's powers, but can also contribute to an overly-constrained vision of what the Scottish Parliament can and cannot do. Insufficiently close scholars of the Scotland Act - which provides no enumerated list of devolved powers, but instead only things reserved to Westminster, making life difficult - you sometimes get the impression that our politicians do not always realise the full extent of what they are empowered to do under devolution. Even Nationalists are given to mutely conceding devolved fields as areas where London should enjoy priority or even exclusive competence. The underlying issues raised by the Leveson inquiry are a case in point. 

In any case - another court action, another Act of Holyrood teetering on the brink of being declared beyond its powers - which should serve as a small reminder that while MSPs are representatives and politicians, they are also lawmakers, and the evidence at least suggests that they have not yet developed mature legislators' sensibilities for this aspect of their job. The procedures adopted by the Scottish Parliament don't much assist them to develop rugged independency on this score. From its inception, it was envisaged that parliamentary committees would undertake the main labours of scrutinising the details of legislation in Holyrood. In the event, and entirely unsurprisingly, partisan hackery has tended to reign. You don't have to have particularly sensitive ear to note that the concept of "holding the government to account" enjoys only very modest purchase in the discourse of Scottish parliamentarians. In a queer way, proportionality has arguably encouraged this disposition, encouraging all of the parties to hang desperately together, and to avoid dissent or rebellion from their respective leadership's line, and instead to kick outwards. By no means am I arguing that Holyrood's committees do no good work - they do - but their primacy in the scrutiny of proposed legislation simply has not produced the results intended and hoped for.

In addition to partisanship, partly this can be ascribed to the last act of legislation in Edinburgh, which can totally vitiate the virtues of methodical examination of a proposal. Right up until a Bill's last day in the parliament, amendments are typically brought forward, justified by the scantiest ministerial representations, and are promptly voted on - and raced through. There is no moment of pause, no second taken to ensure that these over-speedily adopted provisions combine into the best, intelligible text parliament can contrive to work its will. At the end of this blistering process - a vote on the final object is taken, and if successful, the Act is forwarded to the monarch for her Royal Assent.

It shouldn't surprise anyone that the results of this wholly unnecessary haste are chimerical final texts and poorly-drafted laws, ill-serving the parliament's declared ends.  It is not untypical for parliamentarians more and less mildly to resent what they perceive as judicial interventions in their sphere of competence. They would do well to think on the fact that it partly by dint of their adopting of muddy legislation that litigation and adverse judicial rulings are generated.

Represented by a unicameral parliament, Scotland has no "revising chamber", no delaying, scrutinising site to subject the government's proposals to concerted and in-detail examination.  Another one of those interesting questions for an independent Scotland, I should say. Should we have our own House of the Ancients, a Scottish Senate? Elected, appointed, some muddle-guddle mix of the two? I for one would have no truck with the fripperies, ribbons and peeled mustelids of a Scots Hoose o' Lairds, but depending on the outcome of the independence referendum, we ought to give serious thought to the virtues of forming a second institution in our democracy to undertake some of these neglected tasks Holyrood seems, at present, ill-suited to perform.

Encouragingly, Holyrood has instituted self-reflection through its Standards, Procedures and Public Appoints Committee, who published their first report into reforming parliamentary business in Edinburgh last December. I know some of you are shaking your fists at the screen, damning me for a drab jurisprude whose passions ought to be animated by other things - but this stuff matters and will, I fancy, have a significant impact on an approaching controversy in Scottish politics.

More on that tomorrow...


  1. I have suggested for years now that if a second House of financially-independent appointed-for-life legislative blockers and revisers is considered essential, it should be composed of everyone who wins over a million in the National Lottery.

    I'm actually quite serious about it. Further, I would make it a legal condition of getting the money that you are required to spend a certain number of days in the House listening to debates.

    A silly title would be optional.

  2. Even with a revising chamber, the legislation emanating from Westminster is regularly subjected to scathing judicial criticism. Is there any evidence at all that the standard of Scottish Parliament legislation is lower than that of Westminster legislation? Which is not, of course, to say that there is not room for improvement in both.

  3. Lallands is absolutely correct to say that the drafting of Acts of Scottish Parliament are pretty appalling even by Westminster standards. Even when it is compliant with the various limitations on the Parliament's power, the turns of phrase used can be utter gash. Look no further than the way the Sexual Offences (Scotland) Act 2009 is drafted to see what I mean. It inadvertently changed completely the structure of determining sexual offences c.f. other criminal offences at common law, when the same result could have been achieved without contorting and undermining the basic notion of actus reus and mens rea of the relevant offences.

    I'm not convinced of the need for a second chamber, but I wouldn't be averse to it. I think the role of the Presiding Officer needs to be cut back as they seem quite content to treat their statement of competence as gospel. They should perhaps subject all legislation at either/both Stages 2 or/and 3 to a legislative competence committee composed of the Lord Advocate, some legal pleblings, and a handful of (preferably legally qualified) MSPs.

  4. I have often advocated a second chamber in which all regions of Scotland are equally represented, along the lines of the US Senate which has two senators from each state, regardless of physical or population size. My thinking is that such a chamber would be a counterbalance to the preponderance of Central Belt MSPs in the primary chamber.

  5. To be fair, Graeme, the treatment of sexual offences in a manner different from others in criminal law is probably a policy objective, given the political imperative of increasing the conviction rate. What some - and I think Ms Lamont is one of these - might like to do is to dispense with all this difficult "innocent till proven guilty" stuff in sexual offence cases, but there is another political and indeed legal imperative making this impossible. Hence the apparent guddle.