I am conscious that commenting in any way on the Scottish Parliament’s consideration of the Scotland Bill (and the Calman project) in a critical way is likely to lead to various allegations about my political position. So, before commenting on it my declarations of interest. It is probably as well to set out my political position. I am pro-union, campaigned for devolution when I was politically active a while ago, am unconvinced on the arguments for independence but am not closed to the idea. I have in my time voted for various parties (the only major Scottish party I have not voted for being the Conservatives – and while I have voted SNP I have done so at local authority level, not at national level). I am broadly in support of increased devolution in some areas. I think some matters are better dealt with at a UK level, some better dealt with at a European level; and have not thought about the financial arguments in sufficient detail to have a considered view on the issue.
I am somewhat sceptical about the parliamentary aspects of the legislative process at Holyrood – in that I feel it fails to provide sufficiently detailed scrutiny to the bill and amendments during the passage of legislation. However, I think the stage 1 consideration where evidence is taken from experts is valuable, and can provide valuable insight and critical review of policies underlying any bill. Stage 1 consideration is though dependent on two things: a committee asking pertinent questions which allow proper scrutiny of the bill; although that is dependent upon the identification of the right witnesses to question.
When witnesses attend the Parliament they typically submit a preliminary paper with a position and ordinarily will expect to be questioned on that. The scope of questioning should be limited by the legislation in front of the committee and by the call for evidence issued by the committee (in a form of wording the committee has agreed). Departing from that will not help a committee obtain valuable evidence. Neither will grandstanding. And where witnesses are invited to attend and either not given notice of topics for questioning; or are questioned on points that do not relate to the legislation that is being considered the end result offers little assistance in the evaluative consideration of the bill.
I was therefore somewhat surprised by the approach taken by questioners during the Scottish parliament’s committee consideration of the Scotland Bill. The treatment of Professors Drew Scott and Andrew Hughes-Hallett in the evidence session this week seemed to go beyond the remit of the committee, and seemed designed as an exercise in political pointscoring between certain opposition MSPs and the Scottish government, rather than attempting to properly scrutinise the policy and text of the legislation before the Parliament.
The session and the general issues relating to the giving of evidence are considered in an excellent blog post by Alan Trench. This post also includes Professor Scott’s only public response to the furore. If you read this you will see that as a result of the approach taken by the committee this week, Alan Trench himself – one of the leading academic commentators on devolution, with a wealth of experience having advised House of Lords select committees on devolution and the Barnett formula, has responded in the following way.
“An episode like this is unproductive in several ways. It damages the reputation of the Parliament, particularly among expert witnesses, and may make create problems in persuading them to assist it in future. It also means that the Committee doesn’t get the best help it could from those witnesses when they do appear before it, because they will be on the defensive. This is because that sort of engagement calls for a pretty high level of trust, which is seriously undermined when experts are ambushed as Scott and Hughes-Hallett were. Once damaged, that sort of trust is very hard to rebuild.
As a result, I felt I needed to have confirmation from the Committee’s convenor of the issues that would be covered during my evidence session. While I welcome robust engagement with politicians about the issues on which I work and accept the need for flexibility about the questions that are raised by members of a committee, I also need to know what’s expected to be discussed in order to prepare to give evidence. My attempt to do so on Thursday – only three working days before I was due to appear – produced a good deal of activity, but not much action. Indeed, it rather seemed as if no-one had a clear idea of the purpose of the session I was due to attend and what was to be discussed at it until I pressed the issue. Such confirmation as I’ve had has been vague, clearly incomplete and so late that it’s not been satisfactory. As I’ve not been able to get the sort of clear indication of what would be discussed that I sought, I’ve had no option but to pull out.
The Scotland bill is a flawed piece of legislation (as was the Calman report before it), but it’s an important one. (I’ve set out the main features of my views on it HERE and HERE.) I would like to have helped the Parliament in working to improve it, not least in making clear that it will only be the first step in a much wider process of reviewing devolution and not the end of that process, assuming it becomes law. I’m very sorry not to be able to assist the Committee at its coming meeting, and mean no discourtesy to the Parliament by withdrawing, but this sort of affair makes it very hard to work with it.”
His response is completely understandable. The absence of evidence from him, and the approach to the questioning of Professors Scott and Hughes-Hallett, suggests that the end product from the committee will not be as useful as it should have been. Omissions from the final report seem likely – simply through not having evidence presented. And will there be an institutional impact for those subject experts invited to give evidence to other committees?
Grandstanding for political objectives in the questioning of independent non-government (or party political) witnesses ill serves the legislative process. It ill serves the Parliament.
The consequence is that we end up with legislation of the quality that our parliamentarians deserve. Sadly, it is everyone that has to live with that.