Something seismic has happened in Wales. A century of Labour hegemony has ended, and Senedd expansion represents a constitutional coming-of-age for a legislature entering its seventh session.
300 miles north, the Scottish Parliament, by contrast, seems resigned to incremental rather than institutional reform. While the SNP have won a resounding victory which they may try and translate into a mandate for another independence referendum, they lack any record of constitutional reform inside the Scottish Parliament itself. After 27 years of devolution, the case for democratic renewal is now increasingly compelling. Devolution in Wales has been under continuous review, and whilst this sustained process of self-reflection has certainly been disruptive, it has helped address flaws and refine its democratic system. Far less time has been dedicated to strengthening Holyrood, and when recommendations have been proposed, they’ve too often gone unimplemented. This piece, building on comments made in my last, highlights areas where Holyrood is flailing and areas for improvement that new MSPs may wish to consider.
The Presiding Officer
In April, three MSPs co-authored an article vocalising their concern at how the Parliament’s Presiding Officer is selected. Kerr, Sweeney and Gibson reveal that what appears to be a genuine contest to select the chair of parliamentary proceedings has instead already been agreed behind closed doors.
They argue that candidates who emerge are those considered the ‘least objectionable to the party machines’. That’s despite the Presiding Officer being an instrumental figure in proceedings, not least because of their duty under s31(2) of the Scotland Act 1998 to state the legislative competence of a Bill at its introduction. The PO needs to be someone MSPs have confidence in and choose based on their ambitions for Parliament – whether that be a stronger role for backbenchers, longer debates, and/or a willingness to challenge poor ministerial responses to questions. The procedural tensions caused by the election result, with Labour and Reform the equal largest opposition parties, make the role, if anything, more important.
The concerns raised in April were reflected in the conduct of the most recent Presiding Officer election. When outgoing PO, Johnstone, declined to facilitate a formal debate, Kerr organised an impromptu hustings providing a forum for candidates to discuss their ideas. This highlighted the limited institutional space for transparent consideration of those vying for a role central to the function of Scotland’s democracy.
Historically, those who emerge as PO tend to be persons at the end of their political careers. Indeed all but one of Scotland’s six POs retired after serving just one term in the chair and so are unable to develop long-term institutional authority or shape the culture of proceedings beyond a single session. Strong individual characters have sought to mitigate this: Tricia Marwick demonstrated a willingness to use her position to call for institutional reform. This is a mantle likely to be taken up by Gibson who – somewhat unexpectedly – won the race to be the new PO. Upon election, he stated that the Parliament ‘could be so much more’, signalling an intention to pursue the reforms he previously articulated with Kerr and Sweeney. Whether such rhetoric will translate into substantive institutional change – for example, in relation to rigid timetabling, the weak scrutiny of the executive or the stifled nature of debate – remains to be seen.
Committees
Owing to its unicameral design, the Parliament’s Consultative Steering Group intended that committees would be the driving force at Holyrood: a forum for MSPs to work together, holding the government to account and scrutinising legislative proposals. Committees, however, have not lived up to this expectation. A recurring issue has been the influence party leaders have exerted over committee convenerships, depriving them of independence and instead granting them in acts of patronage. The result has been a system in which those vying for positions are encouraged to demonstrate loyalty to their party and, contrary to the Parliament’s aim of working towards consensus between parties, the structures instead promote a culture of internal party cohesion.
The answer has long been available in a recommendation made by the Commission on Parliamentary Reformin 2017, and was raised again by the Standards Procedure and Public Appointments Committee this year: conveners should be elected by a secret ballot of the whole parliament. This follows the Senedd and House of Commons example, whose experience documents the benefits: greater authority and legitimacy for committees and an attractive alternative to ministerial office for chairs. Before dissolution, MSPs voted to amend Standing Orders so that the seventh session will elect its conveners – a significant reform with the potential to strengthen the independence of committees, whose impact will depend on the actions of the MSPs being sworn in this week.
The SPPA report also highlighted the issue of membership turnover. The majority of committees had only one or two members who remained throughout the session, meaning institutional knowledge is undeveloped and legislative scrutiny all the poorer for it. Addressing this requires more than a simple amendment of Standing Orders, but is a worthwhile pursuit if committees are to achieve the greater respect and authority.
Electoral system
Scotland uses the Additional Member System to elect its 129 MSPs, 73 through First Past the Post constituencies and 56 on 8 regional lists through the d’Hondt method. This proportional system has ensured smaller parties are represented – see the 2003 ‘rainbow parliament’ – and, except in 2011, election results where no party has a majority, thus requiring parties to work together. How a government will be formed at the start of this session remains to be seen.
But weaknesses have become harder to ignore. Unintentionally, AMS has created two tiers of MSPs, with those elected on the regional list sometimes viewed as lesser or as constituency rejects elected ‘through the back door’. This fosters a needlessly unhealthy attitude. More worryingly, the 2021 and 2026 election campaigns have revealed how easily the system can be gamed. When Alex Salmond established Alba in 2021, he said voters could deliver an ‘independence supermajority’ by voting SNP in the constituency and his party on the list. The Greens, standing in just 6 of Holyrood’s 73 constituencies, encouraged the same tactic at this election. The SNP’s regional vote share fell by 11 per cent relative to their constituency performance, while the Greens rose by 11.7 per cent.
Bentham’s maxim that ‘everyone to count for one, nobody for more than one’ is tested when system-gaming means a voter who casts both ballots for Labour could end up with zero Labour MSPs, whilst someone who votes SNP 1/Green 2 achieves two desirable representatives.
Peter Kellner recently explored this in greater depth, pointing to how easy it would be for the electoral system to return a pro-independence majority of MSPs, even if pro-Union parties secure a majority of votes. Though this election did not result in a ‘supermajority’, there are now 73 pro-indy MSPs despite pro-union parties receiving some 698,000 more votes. The effective transfer of support within the pro-indy bloc on the regional list translated into this disproportionately high representation. At best, this is unfair, but at worst, it is constitutionally destabilising, should the result be construed as a mandate for another referendum.
The next session should look to change the electoral system to strengthen the proportionality of results. The Single Transferable Vote method, already used in Scottish local government elections, is a prime candidate.
The legislative process and participation
In 2017, the Parliamentary Reform Commission said that procedure meant MSPs were ‘slow to respond to emerging issues.’ Little has changed since. A recent example saw a heated exchange between the PO and one MSP over the repeated denial of an Urgent Question. Parliamentary time restricts extensive debate on live issues with fewer UQs taken than in the Commons. If MSPs wish to be responsive, then Parliament must strike a much better balance. Reviewing Parliament’s operating hours and allowing committees and the chamber to sit concurrently – as the 2017 Commission recommended – would be a straightforward step.
With no revising chamber, MSPs do not have the luxury of passing potentially imperfect legislation. The Assisted Dying Bill illustrated the danger of the status quo: over 300 amendments were debated at Stage 3 and 175 agreed to – a volume that signals the Bill arrived at its final stage inadequately prepared. Where pre-legislative scrutiny is insufficient, Stage 3 becomes an emergency repair exercise rather than the focused final vote it should be. Parliament should, therefore, revisit the 2017 Commission’s recommendation for a five-stage legislative process with pre- and post-legislative periods, and the proposal to allow a Bill to be paused at Stage 3 and referred back to the relevant committee. This ‘reconsider’ power would give MSPs breathing space to grapple with complexity, all the more pressing given a growing trend in litigation that tests the Parliament’s competence.
The time MSPs spend in the chamber must also be used more effectively. There needs to be serious reflection on pre-written speeches and the lack of free-flowing debate. As I noted in a recent article, party whips have almost full control over who speaks, circumventing spontaneous interaction between members. This ought to be confronted, with the PO empowered to select more backbenchers.
Remote participation, introduced during the pandemic, has further diluted the back-and-forth jousting a parliamentary chamber needs. There may be rare justifications for it, but as a general rule, MSPs should not be dialling into a debate or committee session from their kitchen. Nobody involved in the home rule campaign expected it to be interpreted literally.
A call to action
Few can now imagine Scotland without its own parliament. That is a testament to the success of Holyrood in embedding itself into public life, but it is not immune from scrutiny. It is because the Parliament is celebrated that it must be renewed. Above, I’ve offered some examples of how the next session can break from the stasis of the last two decades.
At the opening of the Scottish Parliament, Donald Dewar hoped for the days when its debating chamber was alive with ‘debate, argument and passion’. That’s an aspiration that cannot go unrealised and should instead be a call to arms for our newly elected MSPs.
Declan McLean.
Declan McLean is a PhD student at Cardiff University. His research focuses on the future of the UK’s territorial constitution. He has worked in the Scottish and UK Parliaments and as a Researcher at the University of Glasgow’s Law School.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.