Laying down the law — why do problems emerge when legislation is created?

In the second article in a three-part series, Peter Ranscombe explores why drafting legislation is a lot more complicated than critics may suggest.

Forming legislation is a complex process. The Scottish Government, individual members of the Scottish Parliament (MSPs) and parliamentary committees can all bring Bills to Holyrood’s chamber for scrutiny, with room for occasional private and hybrid Bills too.

Experts highlight that some of the criticism of Holyrood’s legislation comes down to opposition to the underlying policies, rather than the framing of regulations. Yet, away from the party-political arguments and opposition to policies identified in the first article in this series, some mistakes are made when drafting legislation, including over the notoriously complicated non-domestic rates – or business rates – and secondary instruments criticised by Holyrood’s Delegated Powers and Law Reform Committee.

Without pointing the finger of blame at individuals or teams, do questions arise over the capacity of the Scottish Government to draft legislation? And why can mistakes arise in the first place?

Michael Clancy, director of law reform at the Law Society of Scotland, praises the work of the Scottish Parliamentary Counsel Office (PCO), which he says drafted 15 Bills last year, 15 Bills during 2024, six during 2023, 10 in 2022 and 20 in 2021. “The PCO is very good at drafting legislation, and it drafts a lot of it,” he says. “The drafting of legislation is complex, it’s not easy to do, and it’s done in a pressurised environment.”

‘The law ain’t simple’

Dr Andrew Tickell, head of the Department of Economics and Law at Glasgow Caledonian University, highlights the complexities of framing policy in Scotland from a legal point of view. “It was already complicated under devolution in 1998, but now we have a situation where areas of policy have been subject to things like the 2016 Scotland Act,” he explains. “In some areas, understanding devolution now requires an ability to deal with triple negatives, in terms of the framework of the Scotland Act.

“Throw into that the post-Brexit shift in how regulation works under the UK single-market legislation and that’s a whole other area of complexity. Then there’s the third dimension of the inherent unpredictability or adjudicative character of a lot of the key norms that Holyrood is subject to, such as the European Convention on Human Rights (ECHR) – it’s not a big list of rules that you can follow and is subject to evolutive interpretation.”

Andrew adds: “There’s a wider question for me: ‘How are we thinking about compliance when we’re legislating?’ I think the way most MSPs think about it is as a tick-box exercise – the officials say it’s fine, so we don’t have to worry about it. In most cases, they’re not seriously asking themselves whether this is within legislative competence or is there a risk it will be challenged under the ECHR.

“It’s treated as a technical matter, and the politics goes on in the space that’s left. Increasingly, you’re dealing with situations where threats of legal challenge are part of the debate as legislation is going through. From my own experience of talking to policy officials and ministers, sometimes they can underestimate some of those risks.”

Andrew points to the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill, which completed its passage through Holyrood in February of this year and which he believes will be subject to an Article 9 challenge under the ECHR. “The unpredictability of legal outcomes means that sometimes you end up with cases that are perfectly arguable on both sides ending up in the Court of Session or Supreme Court. The loss is repackaged as incompetence, as if it was really obvious to everybody at the outset that the law was simple – and the law ain’t simple. It’s the role of the Supreme Court to give the final judgment on it.”

Diverging views over parliamentary scrutiny

Michael highlights the rigour of Holyrood’s three-stage process for considering legislation, from the lead committee taking evidence from expert witnesses and parliamentary debate at stage one, through line-by-line consideration and amendments at stage two, and on to the final debate and vote in the chamber at stage three. “It’s quite a rare experience in my recollection that a Bill does carry with it some fatal significance, like the evaluation and rating legislation,” he says. When mistakes are discovered, he highlights the multiple methods for making corrections, through further primary or secondary legislation.

But Andy Wightman, who served as first a Scottish Greens and later an Independent MSP for the Lothian region between 2016 and 2021, argues: “I don’t think the Scottish Parliament is particularly good at scrutiny – it’s better than Westminster, but it still doesn’t have the time and the capacity to do a serious job of scrutiny. One of the problems is that they talk about stage two as being ‘detailed scrutiny’, but it’s not really, it’s detailed scrutiny of amendments that have been lodged, not line-by-line scrutiny. There’s a problem with the capacity and the scrutiny process, in the sense that some of the problems that then later arise have never actually been examined in detail by Parliament.”

Andy adds: “I think the Bill that ends up being considered at stage three should be substantially the same as the Bill that’s introduced, without huge new bits of policy added on, because that can’t get properly consulted on. I would put that down to sloppiness and laziness on the part of the Government, perhaps because they feel they’re up against the clock.”

Jim Gallagher, chair of the Our Scottish Future thinktank and a former senior civil servant, points to problems with the parliamentary process. “When the Scottish Parliament was created, the committees were designed so that members became experts who could scrutinise legislation. But what happened, particularly in recent years, is that those committees have become essentially partisan voting chambers.

“You don’t have the expected committee unity, which would enable them to make disinterested judgements on legislation – instead, it’s all a question of what the Government can push through. The finance committee is a notable exception – and the audit committee is different as well – but the subject committees are broken reeds.”

In the final article in the series: What can be done to improve the quality of legislation passed by Holyrood?