Sunday, 18 August 2013

The Find them Something to Do (Scotland) Act

From the very outset of the modern attempts to develop a scheme for Scottish Devolution it was a given, unlike proposals for Wales, that the Scottish Assembly, Parliament or whatever should be a legislature. By a legislature is meant a body with an ability to pass its own laws. Pre devolution it was always anomalous (to say the least) that Scotland was the only place in the world with its own legal system but without such a legislature. That was not the only reason however that law making powers were regarded as important.

The making of law is required for two purposes. Firstly, it can be prescriptive: either positively, such as the requirement that every birth shall be registered, or negatively such as the "outlawing" of smoking in public places. Secondly, it can be permissive: discretionary, such as authorising Police Officers to detain people if suspected of a crime, or directive such as (to choose a topical example) empowering but also instructing Returning Officers to hold a Referendum next year.

So the ability to pass laws is important.

Invoking the law however requires to be done for a purpose. It is not meant to be the vehicle for the expression of worthy sentiment, still less for the sake of giving our MSPs something to do. Yet increasingly it is being employed for precisely that object.

Before I go on, it is important that I emphasise that this is not a unique criticism of the current SNP Government. This baleful trend started under Jack and has only been continued by his successors in office. The criticism is not a Party political one, it is an institutional one.

I am moved to these thoughts by the Children and Young People (Scotland) Bill which was introduced in April past and which is currently grinding its way through the Parliament. Last week, the Faculty of Advocates produced their response to the Bill. Now the Faculty, for those that know its workings, is not an organisation given to outspoken remarks of any sort and this document has to be read against that background. My own professional body, The Law Society of Scotland, is a bit more combative in its evidence.

Nonetheless, I have chosen the Faculty's response for the very reason that its words are so measured. When they say in their comments on Part 1 of the Bill

"The Faculty does not consider that Part 1 of the Bill further develops the rights of 
children and young people in Scotland to a significant extent."

they could, in all truth, be referring to the entirety of this legislation.

Let's just consider clause 1 of the Bill. It relates to the United Nations Convention on the Rights of the Child

1 Duties of Scottish Ministers in relation to the rights of children

 (1) The Scottish Ministers must—

(a) keep under consideration whether there are any steps which they could take which 
would or might secure better or further effect in Scotland of the UNCRC 
requirements, and

(b) if they consider it appropriate to do so, take any of the steps identified by that 

(2) The Scottish Ministers must promote public awareness and understanding (including 
appropriate awareness and understanding among children) of the rights of children.

(3) As soon as practicable after the end of each 3 year period, the Scottish Ministers must 
lay before the Scottish Parliament a report of—

(a) what steps they have taken in that period to secure better or further effect in 
Scotland of the UNCRC requirements, and

(b) what they have done in pursuance of subsection (2).

(4) In subsection (3), “3 year period” means—
(a) the period of 3 years beginning with the day on which this section comes into 
25 force, and
(b) each subsequent period of 3 years.

(5) As soon as practicable after a report has been laid before the Scottish Parliament under 
subsection (3), the Scottish Ministers must publish it (in such manner as they consider 

Now, I am not Alex Neil's greatest fan but I do not for a moment think that he and his officials do not currently

a) keep under consideration whether there are any steps which they could take which 
would or might secure better or further effect in Scotland of the UNCRC 
requirements, and

(b) if they consider it appropriate to do so, take any of the steps identified by that 

Nor do I think that any potential future Government, even made up of the most reactionary of reactionary Tories, would fail to take these steps but, just in case they were so inclined, they would, anyway, only require to do anything at all "if they consider it appropriate to do so" !

As for the requirement to produce a three yearly report, there is nothing at all preventing this being done by the Scottish Government at the moment and, indeed, since this is their legislation, presumably they are already of a mind to do precisely that.

This is completely meaningless legislation, as indeed is so much of the rest of the Bill

It is a hotchpot of warm words and statements of good intentions. It proposes, for no particular reason, to give statutory form to matters that are already being done, voluntarily, either administratively or under existing legislative provisions. It just kind of wanders about the area to no particular end. At one point it repeats what is already in the Education (Scotland) Act 1980, apparently just for the sake of it. The only substantive new proposal, regarding a state guardian for every child is bureaucratically unnecessary and almost certainly incompatible with the European Convention on Human Rights. Indeed there are some rumours that it might even have to be withdrawn for that very reason, leaving what is left of the Bill even more redundant of purpose.

Yet, of course, it does have a purpose. It gives the members of the Scottish Parliament Education and Culture Committee something to do.

Now in some ways it is unfair to pick out this Bill or this Committee for there are numerous other examples I could easily have picked, many of which now form part of the law of the land, not that anybody would ever notice.

Yet this raises wider issues. Why do we need 129 MSPs, particularly if it appears the Government finds it difficult to provide them with any actually useful occupation?

The Scottish Parliament has only limited powers. Far fewer than those available to individual States of the USA. Yet many US States of similar size to Scotland have far fewer legislators. Colorado (population 5,187,582) has only 65 members of its lower house; Wisconsin (population 5,726,398) 99.
Looking at small comparable European Countries with fully sovereign parliaments, dealing with Economic Policy. foreign affairs, defence, taxation, social security and so much else reserved to Westminster under our system, despite their much wider remits, Norway gets by with 169; Denmark with 179.

And indeed at Westminster, England,  regards one representative for each 76.641 voters as sufficient to deal with a much wider remit than that for which Holyrood apparently requires one MSP for each 31,085 voters.

Now this is not about the size of Parliament Scotland would need if we were independent. I agree 129 is probably (a bit) too few for that unlikely scenario. It is about the size of the devolved parliament we have at present. The one that sits only two and a half days a week, never when any school anywhere is on holiday, and even then never after 5.30 pm at night. The one which nonetheless struggles to find "things" for its members to do and thus occupies them with meaningless legislation.

Now, I know that expecting current MSPs of any political colour to vote for their own redundancy is a bit improbable but perhaps they should not be the only ones with a say. Another matter perhaps for my suggested Constitutional Convention.


  1. Splendid Ian - very well observed. This is a thickish section of a wedge, the thin of which the late David McLetchie of fond memory 20 years ago called "guideline law". He would probably refine that now and describe the CYP Bill as "aspiration law".

  2. When you worked out the total for Westminster, did you include the 17,000 Lords and Bishops in the HoL?

    Never mind Ian, as your comrade Michael Kelly said, if it's a No vote, Holyrood will be closed.

  3. A small observation - Scotland has the smallest number of elected politicians (6 MEP, 59 MP, 129 MSP, 1222 Cllr) per head of population in Europe.

    The UK with 1,400 (650 elected, 750 unelected) state legislators is only exceeded by China (population about 20 times UK).

    UK is, arguably, not a democracy. It is an appointed state with a very small addition of theocracy.