Devolution is in trouble. It could learn a thing or two from Westminster

The Scottish parliament was supposed to do things differently. But has it really lived up to that promise?

May 25, 2022
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Image: robertharding / Alamy Stock Photo

During the Thatcher years, campaigners for Scottish devolution argued that Westminster was “subject to heavy pressure to conform with government convenience” and that it worked “on the tacit assumption that the primary purpose of parliament is to facilitate government business.” These were the words of the 1988 “Claim of Right for Scotland,” a document that made the case for a Scottish Constitutional Convention.

A prospective Scottish parliament would be different, campaigners hoped: its committees would be more powerful, while members of parliament would fearlessly challenge and hold to account whoever was in power in Edinburgh. At times campaigners’ criticisms of Westminster verged on caricature, but they served to emphasise a clear point of departure: a Scottish parliament would do things differently.

But after over two decades of devolution, we can see that Holyrood has not lived up to these expectations—and that the Scottish government is firmly in charge. From its inception, the Scottish parliament adopted many defects from Westminster while taking few of its strengths. First minister’s questions imitated prime minister’s questions in style, tone and questionable value as a form of executive accountability. Whipping and strict party discipline mean government backbenchers remain largely inert, as they do down south. At the same time, Holyrood’s committees have proven weaker than those in the Commons, the latter of which are better resourced and have gone through positive reforms in recent years—such as the election of committee chairs, which has resulted in more independent-minded committees.

An early test of Holyrood’s committees came in 2000 with a crisis at the Scottish Qualifications Agency (SQA), Scotland’s educational accreditation and awarding body. Thousands of young people received inaccurate or late exam results leading to two parliamentary committee enquiries. These committees acquitted themselves reasonably well, but the episode highlighted the need for a “much expanded specialist staff available to committees,” as a leading authority on Scottish education noted at the time.

Since then, devolved competences have grown—but so too has the imbalance of power. The Scottish government now has more powers without a commensurate increase in resources and capabilities for parliament to provide effective scrutiny of government.

The recent inquiry into the Scottish government’s handling of harassment complaints—instigated because of how the Scottish government had handled allegations against former first minister Alex Salmond—highlighted the difficulties that committees have in accessing information. (Though, in this case, it was also hamstrung by the partisan behaviour of government backbenchers.) Despite Nicola Sturgeon’s commitments to provide “whatever material” that the committee in charge of the inquiry desired, the committee noted that the “reality in relation to the provision of information did not meet these promises of full co-operation.” In a concluding section, it stated that it had to “drag information out of the government” and concluded that “parliament may have insufficient powers to hold the executive to account.” They recommended the “establishment of a commission to review the relationship between the executive and the legislature and make recommendations for change.” There had already been one Commission on Parliamentary Reform established back in 2016, chaired by John McCormick, but its recommendations—published the following June—failed to make any meaningful impact.

So what might a new prospective commission on reform recommend? Contrary to what campaigners suggested in 1988, it would do well to look at the Commons for inspiration. More powerful committees are essential, but other inhibitions on members also need to be addressed—for example, MSPs are not protected by parliamentary privilege, as MPs are at Westminster. One anomaly that came to light during the enquiry into the Scottish government’s handling of harassment complaints was that MPs could raise matters in the Commons using parliamentary privilege that MSPs could not have done without fear of prosecution.

Parliamentary privilege has been described as an “essential element in the functioning of a modern, democratic parliament” by a former clerk of the House of Commons, and the “most significant modern privilege is that of free speech in parliament.” Article nine of the Bill of Rights of the pre-Union 1689 is usually cited as the source granting parliament immunity from external interference, stating that “the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

There is no reason to withhold this privilege from MSPs—in fact, extending it would be in-keeping with the point of devolution. The prologue to the 1988 Scottish “Claim of Right for Scotland” noted that “twice previously Scots have acted against misgovernment by issuing a Claim of Right; in 1689 and in 1842.” The 1689 Claim of Right was an act passed by the estates of Scotland, the country’s pre-Union parliament. It included a declaration “that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be frequently called, and allowed to sit, and the freedom of speech and debate secured to the members.” (The 1842 claim was a statement of the right of the Kirk to spiritual independence free from state interference, and is less crucial, given it was less concerned with parliamentary privilege.)

Devolution has transformed Scottish politics, mostly for the better. But without significant changes, Holyrood will begin to resemble the caricature of the Commons its founders so heavily criticised. While there is much about Westminster that should be avoided, there are still lessons for the Scottish parliament to learn.

If the SNP resists the extension of parliamentary privilege to Holyrood, that would suggest that it does not see Scotland as politically mature enough to provide its elected representatives with such rights currently enjoyed by MPs south of the border.