Scottish Parliament is here to stay but is far too weak. Here's how to fix it – Murdo Fraser

MSPs need more power if they are to hold ministers to account and prevent bad legislation from becoming law

This week marks the 25th anniversary of the first sitting of the new Scottish Parliament in May 1999. We should not be surprised that this significant milestone has sparked a number of items of commentary around the successes and failures of the parliament, and whether it now needs to adapt in light of a quarter of a century’s experience.

Interviewed exclusively by this paper, Presiding Officer Alison Johnstone argued for an increased number of MSPs, given that Holyrood’s powers have increased considerably since it was established. The Welsh Senedd has just voted to increase its membership from 60 to 96, reflecting additional responsibilities that institution has taken on.

It is not unreasonable to ask a similar question of Scotland, but the challenges with Holyrood go far beyond the issue of an increased workload and the number of MSPs who are there to perform the vital functions of law-making and holding government to account. And it is in relation to both these purposes that Holyrood is presently failing to fulfil the ambitions of its founders.

The Scottish Parliament's 25th anniversary is a time to think about making substantial changes to the way it works (Picture: Jane Barlow/PA Wire)

Too much bad law

We have an imbalance between the legislative and executive branches of power in Scotland. The Scottish Parliament was established to “embody and reflect the sharing of power between the people of Scotland, the legislators and the Scottish Executive”. But parliament has been shown too often to be weak in its ability to scrutinise ministers.

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We have seen excessive politicisation in both committees and the Chamber, insufficient resources and a dearth of expertise. This has created a climate of “hyper-partisanship” rather than a collaborative consensus, contrary to what was hoped for in 1999.

In relation to the process of legislation, we have simply seen too much bad law produced. The Offensive Behaviour at Football Act was so flawed that, following criticism by the judiciary, it had to be repealed. Both the named person policy and the gender reform bill faced legal challenges, the former being struck down by the UK’s Supreme Court, and the blocking of the latter by the UK Government being upheld by a Scottish court. We have also seen too much legislation amended at the third, final stage without a proper consideration of the issues, or appropriate consultation with affected parties.

Crude and simplistic

Holyrood has no second chamber. Whilst there are many legitimate criticisms of the House of Lords, it does operate effectively as a revising chamber, providing a check and balance on the Commons’ legislative power, and identifying problem areas for correction.

I doubt there would be much enthusiasm in Scotland for creating a whole new tier of politicians in a stand-alone second chamber here, but it is beyond doubt that our current three-stage legislative process is too crude and simplistic and requires to be widened and extended.

Scottish Parliament at 25: Even a parliament with poor stewardship is better than no parliament at all

This week the think-tank Reform Scotland, chaired by the former First Minister Jack McConnell, published a paper on parliamentary reform I authored, building on the work of my former MSP colleague Donald Cameron, now Lord Cameron of Lochiel. This brings forward some 25 reforms to make Holyrood more effective both as a legislature, and as a forum for holding the Scottish Government to account.

I propose an improvement to the current method of law-making, with a new five-stage process to include both pre-legislative and post-legislative scrutiny. Prior to introducing any new legislation, there would be a requirement on its proposer – whether a Scottish Government minister, a bankbench MSP, or a parliamentary committee – to set out to the Chamber what is proposed and allow preliminary questions and discussions.

Then, at the end of the current process, a new post-legislative standing committee would be established, consisting of former MSPs, part-time appointees from the public sector, legal experts and other relevant persons, with the purpose of considering and scrutinising bills after Stage 3 and recommending whether a bill needs to be returned to parliament for further consideration if deemed to be defective in any way. This new committee would not seek to undermine the will of parliament as expressed in a bill duly passed at Stage 3, but would be a means by which legislative defects could be cured, or amendments that have not been adequately consulted on could be properly considered.

Stronger role for Presiding Officer

We also need to look at enhancing the powers and privileges that apply to MSPs, to better able them to challenge ministers. There is no reason why the parliamentary privilege enjoyed at Westminster should not be extended to Holyrood in full, including “contempt of court” privilege. Parliament should have the power to initiate judicial inquiries, rather than this being the remit only of Scottish Government.

Committee convenors should be elected, not appointed, a matter currently under consideration by the Standards, Procedures and Public Appointments Committee. A new confirmation committee should be established, to take evidence from, and allow the questioning of, all new ministers and senior public sector appointments.

The Presiding Officer should have a stronger role in ruling on the conduct and content of parliamentary business, particularly over all questions and answers in the chamber, to ensure a better balance between political debate and scrutiny. There should be a review on the existing time limits for debates which in many cases can be too restrictive and prevent proper examination of the issues.

It is certainly reasonable to review whether the number of MSPs at 129 is still appropriate. It is also important to introduce a cap on the number of government ministers, to ensure that government is not disproportionately large in relation to the size of parliament as a whole.

I have a number of other detailed proposals to improve the operation of the parliament, and am keen to encourage a debate both amongst MSPs and in wider Scottish society as to how Holyrood might be improved. It is clear that our devolved parliament is here to stay: our focus should be on how to make it work better for the benefit of all.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife