The Hate Crime and Public Order (Scotland) Act, passed in 2021 and brought into force earlier this month, will probably stand the test of time. Amidst the fire and fury, and the legitimate and important questions over whether the Act impinges on freedom of expression, it is more likely than not that it will remain in place forever.
The associated practices on which light was shone during the process, principally the logging of names by the police of those innocent citizens who have been deemed to have perpetrated a non-crime hate incident, will, we should all hope, be abandoned. However the Act itself will, in all likelihood, avoid the fate of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act, repealed after five years as a result of its unintended illiberalism and its failure to tackle the issues it was designed to.
Nonetheless, the debate over the Act plays into an ongoing concern about the quality and scrutiny (as opposed to the intentions) of Acts of the Scottish Parliament. Unlike at Westminster where the House of Lords performs scrutiny of legislation passed by the House of Commons in a bicameral system, Scottish devolution was designed as a unicameral system in which the job of scrutinising and revision legislation sits with Holyrood’s committees.
In principle, that is not unusual. There are more unicameral legislatures around the world than bicameral ones, particularly at sub-state level, and they carry a theoretical advantage in the efficient passing of legislation. In practice, though, at Holyrood, the system is failing. The committees are so dominated by whipped political parties that they are offering next-to-none of the sceptical scrutiny which is central to their role. Instead, our binary politics has, in effect, ensured that in most cases committees split in precisely the same way as the Parliament splits, along nationalist and unionist lines.
This really isn’t working for Scotland. Most MSPs are aware of this, and many say so openly. Indeed, seven years ago a report commissioned by former Presiding Officer Ken Macintosh recommended the election (rather than appointment) of committee conveners to cement their independence during the legislative scrutiny process.
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And yet, little has changed. Something much more fundamental is needed; Scotland needs to jump onto the bicameral bandwagon. I do not expect such a decision would be greeted with uniform approval; from the public’s perspective, the thought of more politicians would provoke an eye-roll, at best, and rage at worst.
One can understand why. Our MSPs, as a group, have not been at their best in recent years. At a time when the priorities of the people are clearly focussed on the economy and the healthcare crisis, followed by immigration, education and housing. Holyrood’s recent priorities do not feature; according to recent polling, crime in general is in the top three priorities of only 10 per cent of people, and it is safe to assume that the 10 per cent are thinking about burglaries and drug dealers, not about transphobia (on that note, gender reform is a top three priority for only around 2 per cent of us).
Holding up, as a solution to this, more politicians, is a thankless task, I suppose. But hear me out… If I were to isolate one problem with the body of MSPs at Holyrood it would be a lack of real-world experience. When I first worked in the Scottish Parliament, 22 years ago, in the first Parliament, I was dubious about the quality of MSPs, and presumed they would improve as the institution aged. Looking back, I reflect now that I was walking amongst political giants; Dewar, Salmond, McLetchie, Harper, Alexander, Steel, McLeish, MacDonald, Chisholm, Monteith, McConnell, Canavan, Hamilton, Wilson, Deacon, two Wallaces and three Ewings.
Not so, any more. We have MSPs equal to those aforementioned, of course. But not enough. We have failed to raise the average level; we have failed to build on the foundations that "the originals" provided for us.
One cannot expect our MSPs to have used the NHS and public transport, and to have taken kids through state school, and to have tried to get onto the housing ladder, and to have started a business, and to have worked in different jobs and sectors, and to have lived in different cities and countries. But when large numbers of our policymakers have done barely any of those things, we have a problem.
For that reason, and to act as a counterbalance, I would propose that Scotland’s revising chamber would elect only independents. Nobody standing for election to the second chamber would be permitted to stand as a representative of a political party. They would be independent; voters would judge and elect them only on their ability and their experience, and entrust them to scrutinise and revise legislation based only on their ability to assess the merits and consequences of the law.
Furthermore, there would be no need for members of a Scottish upper chamber to be full-time. It could viably be a second (or indeed third of fourth) job, albeit one which pays well to attract quality candidates, and indeed the merit of members of this upper house remaining in their real-world careers could be substantial.
An additional benefit for sceptics is that there would also be no requirement to build another Parliament. Sitting in a quadrilateral along with the Scottish Government (St. Andrews House), the UK Government (Queen Elizabeth House), and the Scottish Parliament (Holyrood), is New Parliament House, or the old Royal High School if that remains your favoured terminology. Sitting empty and rotting, stuck in inertia with proposals ranging from a five-star hotel to a music school going nowhere, this Thomas Hamilton masterpiece with its beautiful oval debating chamber could finally serve a purpose once again.
Moving from unicameral is to bicameralism is unusual. It goes against the grain, particularly for sub-state legislatures. But to quote Albert Einstein, the person who follows the crowd will go no further than the crowd, but the person who walks alone may find himself in places no one has ever seen.
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