John Sturrock KC

One of the difficulties which the Scottish Parliament has encountered is that legislation has on occasion been found, after passage through Parliament and in some cases implementation, to be in some way ineffective, inadequate or inappropriate. Past examples might include laws on offensive behaviour at football matches, the named persons scheme and children’s human rights.

It has been argued that this may due to a failure of the scrutiny function of parliamentary committees which, particularly in recent years, seem to have become more partisan and less effective than in the early days of the Parliament at holding the Scottish government to account. The Supreme Court has of course been called upon to consider some legislation. But, in the absence of a second revising chamber, what else might be done?

I am indebted to Sir David Edward, formerly the British judge in the European Court of Justice, for referring me to his article in 2014 suggesting one way by which this might be addressed. Amongst examples of systems of checks and balances found in other European countries, he describes the Council of State of the Netherlands (the Raad van State) whose function is to provide independent objective advice on a number of matters, including all bills introduced to the Dutch Parliament by the government. Its advice is not binding but, given the expertise of its members (including people with experience of different areas of national life, such as former high level civil servants and other administrators, diplomats, legal experts, business-people, politicians and economists), is regarded as authoritative.

In assessing bills and other requests for advice, the Council of State uses an assessment framework made up of three elements: policy analysis, legal issues and technical aspects. Policy analysis is assessed by asking these questions:

• Is the problem being addressed one that can or should be solved by legislation?
• Will the proposed legislation be effective, efficient and balanced as regards costs and benefits?
• Will it be possible to implement and enforce the proposed legislation and to monitor its effects?

Legal issues are assessed by asking:

• Is the bill compatible with superior rules of law (the national Constitution, international treaties such as the ECHR, and EU law)?
• Is it in accordance with principles of democracy and the rule of law?
• Is it in accordance with the principles of good legislation, such as equality before the law, legal certainty, proper legal protection of the individual and proportionality?
• Can it be easily incorporated into the existing legal system?

Questions to address technical aspects include:

• Is the bill well drafted from a technical point of view?
• Does it establish a logical, systematic régime?

The conclusion of the assessment process may be favourable or unfavourable (recommending against the bill altogether or recommending its suspension until substantial amendments have been made). The matter rests with the responsible minister and ultimately with the Parliament. As Sir David comments these serve as “a formidable check on the introduction of ill considered, ill-drafted or tokenistic but unenforceable legislation”. If adopted in Scotland, “the aim would be to ensure good, workable legislation by making provision for a system of objective analysis within a transparent, nonpartisan framework at a stage in the legislative process where problems and pitfalls can be identified and guarded against”.

Such a mechanism might, for example, have led to reappraisal of recent legislation on gender recognition and deposit return schemes, which might then have been differently drafted. It might also serve as useful protection against possibly unnecessary and, as some argue, constitutionally inappropriate legislation, such as that suggested to overturn convictions of sub-postmasters.

John Sturrock KC is a mediator. A shorter version of this article appeared in The Scotsman.