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Legislative Quality and the Scottish Parliament

Document Cited authorities 2 Cited in Related
Vincent
DOI10.3366/elr.2017.0394
Pages109-115
Author
Published date01 January 2017
Date01 January 2017
INTRODUCTION

Writing in The Scotsman in July 2016, Alistair Bonnington made the startling claim that the Scottish Parliament produces “the lowest quality legislation in Europe”.1 Such hyperbole is easy to dismiss; given the linguistic challenges, and the varying roles and styles of legislation in different legal systems, how would one even begin to make such a comparative assessment? Nevertheless, complaints about the rigour of Holyrood's legislative process and the quality of its legislative output, usually by comparison with Westminster, have dogged the Parliament since its earliest days, though criticisms are more often based on assertion and anecdote than detailed analysis. This is perhaps unsurprising given that measuring the quality of legislation and the effectiveness of parliamentary scrutiny are more complex tasks than might be thought.2 This note aims to shed some light on the debate by considering the different things we might mean when talking about “good” or “bad” legislation and by identifying what we know – and, more importantly, what we do not know – about Holyrood's performance measured against these criteria.

 SUBSTANTIVE QUALITY

Complaints about poor quality legislation often concern the substantive merits of particular Acts. Critics may believe that the aims are objectionable, the methods chosen to achieve those aims are misguided, or the policy could have been implemented without requiring new legislation. Such judgments are necessarily subjective, and the quality of Holyrood's legislative output cannot be condemned merely because some disagree with it. However, more meaningful assessments of substantive quality can be made in terms of democratic legitimacy and policy effectiveness. In other words, is Holyrood legislation responsive to the needs and wishes of people in Scotland, and does it achieve its aims without creating unanticipated problems?

Democratic legitimacy

A – perhaps the – key function of a Westminster-style parliament is to confer democratic legitimacy on legislative proposals.3 Since the legislative initiative in such systems rests primarily with the executive, the main function of the parliamentary process is “to turn something politically contentious into something that attracts greater public acceptance and adherence.”4 Given Holyrood's popularity,5 it cannot plausibly be argued that it does not do this successfully6 – certainly much better than the situation before devolution. The lack of time for Scottish legislation at Westminster, and the perceived democratic deficit arising from divergent electoral majorities at Scottish and UK levels were both key arguments for devolution. The mere existence of the Parliament, along with its more proportional electoral system, means that it is much more democratically responsive, passing far more, and more timely legislation, better tailored to Scottish circumstances and political priorities

Of course, the process is not perfect. As in any Westminster system, Holyrood's legislative process is highly executive-dominated. Aspirations – perhaps naïve –...

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