The Scottish Parliament’s Commission on Parliamentary Reform, established by the Presiding Officer last year, reported in June. Its recommendations include that committee conveners should be elected by the whole Parliament, changes to First Minister’s Questions, the extension of the legislative process from three stages to five and the establishment of a new backbench committee. Ruxandra Serban summarises the report and notes that several of the most substantive recommendations would bring the Scottish Parliament’s procedures closer to those of the House of Commons.
The Commission on Parliamentary Reform was established on 26 October 2016 by the Presiding Officer of the Scottish Parliament, Ken Macintosh MSP. It was chaired by John McCormick, a former Controller of BBC Scotland and UK Electoral Commissioner with special responsibility for Scotland, and included 10 other members: five from civic society appointed by the Presiding Officer, and one nominated by each political party represented in the Scottish Parliament.
The Commission was appointed to review the evolution of the Scottish Parliament in the 18 years since its founding, and to assess its capacity to deal with the additional sets of responsibilities devolved through the Scotland Act 2016 and expected to result from the Brexit process. The Commission convened between November 2016 and June 2017, and sought evidence through meetings and public events, written submissions, oral evidence sessions and an online survey.
The report published on 20 June 2017 makes reference to the set of principles proposed by the Consultative Steering Group (CSG) in 1998 as the key benchmark against which to measure the effectiveness of the Scottish Parliament, and upon which to base suggestions for reform. The CSG was set up in 1997 by the UK government to consider institutional design options for the Scottish Parliament. Its report set out four principles to inform the functioning of the new parliament: power-sharing; accountability; open and accessible participation; and equal opportunities. Since then, some questions have been raised about whether the Scottish Parliament has truly managed to embody the principles of ‘new politics’ envisaged by the CSG, or whether it is in fact a ‘Westminster model’ parliament (notably here and here).
Part 1: ‘A stronger and more effective Scottish Parliament’
The first part of the report outlines a set of institutional reforms which the Commission suggests would improve the capacity of the Scottish Parliament to engage in more effective scrutiny through its committees, and would also facilitate a more effective use of plenary time.
Citing the CSG’s focus on ensuring that the Scottish Parliament, as a unicameral parliament, is equipped with a strong committee system that performs the functions of legislative scrutiny and government accountability, the Commission proposes extensive reviews of both the composition and the work of committees.
The Commission identified several problematic areas in the current functioning of committees: party discipline enforced on non-legislative issues; the overload of some committees with legislation, which prevents them from developing a more long-term or cross-cutting strategy for scrutiny; little evidence of pre/post legislative scrutiny; and high turnover of membership, which prevents members from developing specific policy expertise (pp. 7-8).
The current system in the Scottish Parliament distributes committee convenerships (chairs) among parties through the d’Hondt formula. Parties then decide nominees for conveners, and put proposals forward to committees for approval. The Commission noted the importance of maintaining the independence of committees from the government, and proposed that conveners should be elected by MSPs, beginning from the start of the next session. This would emulate the practice established in the House of Commons from 2010, following the report of the Wright Committee.
The report argues that election by the parliament as a whole would give conveners a mandate from fellow MSPs, rather than from their parties, and it would also provide them with a strong mandate to develop their committee’s scrutiny agenda (pp. 8-9). The Commission stressed that the aim of this proposal is to make the process of electing conveners more transparent and open.
Other recommendations relating to committees
The report notes that the size of committees has a direct effect on their working style, with larger committees being more likely to facilitate party-based behaviour. During the current session, the size of committees ranges between five and 11 members. The report suggests that committees should normally comprise a maximum of seven members, and recommends that the Scottish Parliament should ‘agree and make public a set of principles’ that inform how the size, names, and remits of different committees are decided (p.12).
Aside from changes referring to composition and membership, the report also includes recommendations regarding the work of committees. A first recommendation in this respect is to broaden the scope of scrutiny by extending the remit of committees to consider matters concerning public bodies, such as pre-appointment hearings and annual hearings concerning performance and spending. A second aspect, detailed both in part 1 and in part 4 of the report, is to extend the types of evidence-taking mechanisms that committees use, in order to include a wider range of views in their scrutiny work. This includes diversifying both the mechanisms through which scrutiny is performed, to include means alternative to traditional committee meetings, and broadening the focus of inquiries, by seeking views at the local and regional level. As detailed in part 4 of the report, the Commission recommends that the Scottish Parliament should consider trialling different types of technology and deliberative models as part of its engagement strategy. The use of new technology should aim to make the work of parliament more open and accessible, for example by conducting more informal evidence sessions at the local level (p.14).
First Minister’s Question Time
The report proposes several changes to First Minister’s Questions in order to make more effective use of plenary time.
The most substantive recommendation is that the questions that MSPs have submitted in advance for First Minister’s Questions should no longer be printed on the Bulletin Paper; instead, only the names of MSPs selected to ask questions should be printed (p.18). Currently, questions are printed on the bulletin paper. MSPs are called to ask their tabled question, and may ask supplementary questions at the discretion of the Presiding Officer. The proposed reform would bring FMQs closer to the PMQs procedure, where only the names of MPs who have been selected by ballot to ask a question are printed on the Order Paper.
A further recommendation concerns the cessation of the practice of the scripted diary question that party leaders use to open their set of questions to the First Minister. Instead, the report recommends that party leaders should move directly to their first substantive question. The practice of scripted questions can be traced to the early days of Prime Minister’s Questions in the House of Commons. In order to prevent the deferral of questions to other ministers, MPs would first pose a question regarding the Prime Minister’s engagements for the day, and then use supplementary questions to ask their intended questions. As very few questions are now deferred at PMQs and FMQs, the practice no longer serves any meaningful purpose, and has simply become a conventional opening of Question Time in both chambers.
The report argues that removing scripted diary questions and only publicising the names of questioners would bring more openness and spontaneity to FMQs, and would also make the procedure more attractive to outside viewers. Whilst it could be argued that moving to a system where questions are not publicised in advance would bring greater spontaneity to the procedure, more evidence from similar procedures in other parliaments might be necessary to support this claim.
The report addresses the reform of FMQs as a matter of making more effective use of plenary time. Considering the focus of the procedure on the ‘scrutiny of the wide range of matters within the First Minister’s Responsibilities’ (p.18), a more comprehensive approach to reforming FMQs should include an assessment of the effectiveness of this institution in holding the First Minister accountable.
Portfolio and General Questions
The report also proposed changes in the practice of Portfolio and General questions, which are questions addressed to individual ministers, similar to departmental question times in the House of Commons.
Portfolio questions are currently held weekly, with one or two portfolios being covered each week. The report indicates that under current practice too many questions are selected out of those submitted in advance, and consequently some MSPs do not get to ask their question. Selecting fewer questions would allow more time for follow-up questions and more detailed scrutiny. The report suggests that opposition spokespersons should automatically be called to ask a question (p.19).
The report also recommends that the Presiding Officer should have discretion to group questions that address similar issues. As part of a set of proposals aimed at extending the powers of the Presiding Officer over conduct in the chamber, the report suggests that questioning procedures should provide a formal mechanism to allow MSPs to raise concerns with the Presiding Officer regarding the accuracy and truthfulness of answers provided in the chamber. The report indicates that procedures in the House of Commons allow the Speaker to rule on the accuracy of answers provided to written questions, and similar procedures in the Irish Dáil allow rulings on answers provided in the chamber (pp. 27-28). The report does not indicate how these powers operate in practice in the comparator cases – an evaluation of this would add further strength to the argument.
The report further suggests that greater use of ‘urgent questions’, similar to the procedure in the House of Commons, would make chamber business more ‘relevant and responsive’ to urgent issues arising. The Scottish Parliament currently allows topical questions at the start of plenary business on Tuesdays, and also allows emergency questions to be submitted not later than 10am on any sitting day. The current procedure for emergency questions is similar to that for urgent questions in the House of Commons: the Presiding Officer decides whether to allow the question or not, and a relevant member of the Scottish government must appear to answer the question in the chamber. The report notes that the procedure is not used very extensively, and suggests that emergency questions should instead be titled ‘urgent questions’, to stress the emphasis on significance and timing rather than the crisis implied by ‘emergency’ (p. 29).
One of the most eye-catching proposals set out in the report concerns the extension of the legislative process from three stages to five, which would include pre- and post-legislative scrutiny as formal stages.
The report notes that committees should be able to engage more with legislation before it is formally introduced without compromising their role in scrutinising legislation. They would assume the role of preparing briefings and organising engagement activities that may inform MSPs on key issues. In the new stage 1 (pre-legislative scrutiny), the report indicates that the proposer of a bill (whether the government, a committee, or a member) should make a statement in parliament to announce the launch of consultations on proposed legislation.
Stage 5 (post-legislative scrutiny) will require the Scottish Government to make a ‘post-legislative’ statement to parliament after a set period. This is similar to the provisions currently in operation in the UK House of Commons, where government departments are required to send memorandums concerning post-legislative implementation to departmental select committees within 3-5 years after an Act is passed.
The novelty of this proposal is the suggestion to instate pre- and post-legislative scrutiny as formal stages in the legislative process, though it remains unclear at this stage how much difference this would make in practice.
Part 2: ‘Creating greater capacity for parliamentary scrutiny’
The second part of the report discusses ways in which to improve the capacity of the Scottish Parliament to carry out its functions, especially considering the increase in powers devolved through the Scotland Act 2016.
The report defines capacity as the resources of parliamentary time, staff, infrastructure and expertise available for committees to carry out scrutiny, and for parliament generally to deal with the issues before it (p.38).Considering proposals that suggested extending sitting hours, extending the parliamentary week, or introducing a second chamber in order to increase capacity, the report indicates that any reforms should instead focus on ‘fully utilising existing capacity before additional capacity is sought’ (p.38), and should ensure that the Scottish Parliament provides family friendly working conditions.
In seeking to ensure that existing resources are used fully, the report outlines proposals for changing arrangements regarding the distribution of parliamentary time between the plenary and committees. It indicates that committees should have more flexibility to schedule their meetings in parallel with plenary meetings, in order to accommodate their changing workloads.
It also considers the issue of long-term planning, and proposes that the Scottish Parliament should collaborate more extensively with the Scotland’s Future Forum, the Parliament’s think tank established in 2005.
Part 3: ‘Rebalancing the role of MSPs as parliamentarians and members of political parties’
Part 3 puts forward proposals to address the concern that the conduct of business in the Scottish Parliament is dominated by parties, at the expense of individual backbench MSPs. It identifies a tension between the roles of MSPs as parliamentarians and as representatives of political parties, which is manifested in various aspects of parliamentary business.
Parliamentary Bureau and business
The Commission recommended a series of changes in the operation of the Parliamentary Bureau, which is responsible for programming business in the Scottish Parliament. The key aim of this set of proposals is to open up the programming of business to proposals from opposition parties and backbench MSPs. A first step in this direction is to replace the current procedure whereby the Scottish Government proposes the business programme to be considered by the Parliamentary Bureau with a procedure that allows other parties and groups represented in the Bureau to submit business proposals to the Presiding Officer (pp. 29, 46). These proposals would then be considered by the Parliamentary Bureau. A second step would be to review the procedures of the Parliamentary Bureau to allow MSPs to observe part of its proceedings, and to give speaking rights to individual MSPs not represented in the Bureau. This review would also see the introduction of questions on forthcoming business on a weekly basis, following the model of Business Questions in the House of Commons (p. 46).
A third step would be to introduce a backbench committee, to allow backbench MSPs to propose debates. The commission reviewed the current procedure for (backbench) members’ business, and concluded that it is seen as dominated by parties: members’ business is currently scheduled by party according to the d’Hondt formula.
Noting the example of the Backbench Business Committee in the House of Commons, the Commission proposed the introduction of a backbench committee whose members would be elected by backbench MSPs early in each parliamentary session.
With respect to the roles of the committee, the report indicates that it will be tasked with proposing debates reflecting the interests of backbench MSPs, agreeing the motions to be selected for members’ business, and generally acting as the main body representing the interests of backbench MSPs in relationship with the Parliamentary Bureau and the Conveners’ Group, on issues regarding parliamentary time and resources (p.48).
As to the composition of the committee, the Commission warned that membership should not reflect the balance of parties in parliament, as this would maintain the image of a party-dominated institution. Instead, it proposed a series of ‘procedural safeguards’: elected membership by all backbench MSPs, to include a representative from each party/group in parliament, and unanimous decision-making (p.48).
Similar recommendations to allow MPs to have a role in setting parliamentary business in the House of Commons led to the introduction of a Backbench Business Committee in 2010. The committee’s work was welcomed as a ‘successful and effective innovation’ in the first review of its activity by the Commons Procedure Committee at the end of the 2010–12 session.
The success of the Commons Backbench Business Committee in promoting cross-party culture and increasing the topicality and public interest for debates suggests that establishing an equivalent committee in the Scottish Parliament has the potential to bring positive developments in the directions envisaged by the report.
The report also discusses changes in procedures for members’ bills. Under the current procedure, a member’s bill that has gained the necessary 18 signatures from at least half the parties or groups represented in parliament can only be introduced if the Scottish government confirms that it does not intend to legislate on the matter within the same session. The report proposes that a statement from the government confirming its intention to introduce a similar bill should not stop the members’ bill from being introduced; instead, procedures should ‘encourage collaborative working’ between the member and the government (p. 54). The wording of the recommendation indicates that the Commission suggests procedural changes to enact this proposal, but the report offers no further details on how procedures might implement ‘collaborative working’.
Part 4: ‘More opportunities for parliamentary engagement’
The fourth section of the report focuses on extending the ways in which the Scottish Parliament engages with citizens. It proposes a more systematic approach to the ways in which committees engage with the public by establishing a specialist Committee Engagement Unit. The Engagement Unit would oversee the trialling of more innovative methods of engagement and would also support the work of committees.
In seeking to adopt more innovative methods of engagement, and drawing on its recommendations to broaden the scrutiny work of committees, the Commission recommends that the Scottish Parliament should review its digital communication strategy. The use of tools such as online surveys, social media and video conferencing should ensure that the work of parliament is open and accessible. The Committee Engagement Unit would also be tasked with trialling deliberative methods of engagement with the public.
The report also recommends that the Scottish Parliament should work more closely with local government and with the Scottish Youth Parliament. It should set out a protocol with local government which sets out the distinct roles of the two institutional tiers in Scottish politics, as well as the ways in which they might work together.
The Commission’s report is based on an extensive assessment of the Scottish Parliament’s current operation, as well as on a wide range of evidence from inside and outside the Parliament. The report offers varying degrees of detail with respect to proposed reforms. It sets out potential solutions for addressing the challenges identified by the Commission, but leaves room for a future Implementation Group, which it recommends should be established by the Presiding Officer, to decide how to design and enact the proposed changes.
It is interesting that several of the more substantive reforms proposed in the report, notably the election of committee conveners and the introduction of a backbench committee, would bring the Scottish Parliament’s procedures closer to those currently employed by the House of Commons. Other proposals, such as only including the names of MSPs selected to ask questions at First Minister’s Questions on the Bulletin Paper and strengthening the practice of urgent questions, would also bring procedures in line with equivalent procedures in the Commons.
The principles of ‘new politics’ proposed by the CSG in the 1990s sought to design the Scottish Parliament in contrast with the ‘Westminster model’ – a centralised, majoritarian, and adversarial style of politics associated with the House of Commons. That the report recommends that procedures in place at Westminster be adopted at Holyrood suggests that the ‘Westminster model’ against which the principles of ‘new politics’ were devised may have become obsolete, given the extensive reforms undergone by the UK parliament in the 18 years since devolution. Rather than using it as a contrasting case, the report recommends ‘Westminster’ as a model for reforming the Scottish Parliament.
You can read the full report of the Scottish Parliament’s Commission on Parliamentary Reform at this link.
About the author
Ruxandra Serban is a PhD candidate and Research Assistant at the Constitution Unit. Her research focuses on the relationship between heads of government and parliaments.