It is difficult to reconcile devolution today with the early expectations and hopes invested in the new Scottish Parliament.
In some respects, Scottish devolution has become the caricature of Westminster that it sought to shun. Scotland has a power hoarding executive that disdains alternative sources of authority whether that is Parliament itself or elected local councils. Devolved government has moved a long way from the renewed positive relationship between central and local government envisaged.
The report of the Commission chaired by Neil McIntosh, one of Scotland’s most distinguished post-1945 public servants, had set out principles and proposals for ‘moving forward’ after years of turbulence and damage to relations between the old Scottish Office and local authorities. For many decades, long before devolution, a process of centralisation had seen local government stripped of autonomy and resources. Devolution was supposed to change the relationship but the process continued and has accelerated in recent years.
A ‘Covenant’, a joint agreement setting out the basis of a working agreement between local and central government, was amongst the McIntosh proposals. A ‘ready and appropriate source of material’ was available, the Commission noted, in the European Charter of Local Self-Government (from the Council of Europe) and included the Charter’s main terms in an appendix. Over two decades later, Andy Wightman MSP’s bill incorporating the Charter into law offers a welcome change in central-local relations – and was approved this week, prompting UK Government reservations. Wightman has proved to be one of the most independent minded Members of the Scottish Parliament since its creation and one who has engaged seriously with policy concerns.
But in welcoming this measure, we need to put the European Charter into perspective. Its incorporation is an important step, not least symbolically, but alone it will not alter the relationship significantly. But what it does is revive the ideas of subsidiarity, mutual respect and parity of esteem which were the cornerstones of the anticipated new relationship. Much more is required but this is an important first step.
As we proceed, we can either assume that the Charter’s philosophy will become embedded and that declaratory statements of intent are enough – or we can adopt the thinking of James Madison in his address to the people of New York in Federalist Paper 51 when the great constitutional thinker warned that the abuse of power was simply a likely consequence of human nature.
If we fail to provide checks and balances, we should not be surprised to find that power will accumulate and potentially be abused wherever possible. We simply cannot expect that incorporating the Charter into law will suffice. We need institutional reform to provide a check on over-weening government and provide balance to the constitution.
It may be a reflection on human nature, that such devices [checks and balances] should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.’ (James Madison, Federalist Paper 51, 1788).
One of the challenges that the Constitutional Convention confronted back before devolution was how to entrench devolution. This issue has returned with force with the Brexit ‘power grab’ on devolved competences. We must by now realize that we cannot rely on a Scottish version of Peter Hennessy’s ‘good chaps’ model of tacit understandings but acknowledge Sidney Low’s comment that ‘We live under a system of tacit understandings. But the understandings themselves are not always understood’.
The obvious way would be to have an entrenched written constitution but that is not on the cards for Scotland though it may yet emerge in the UK as a whole which would make a Scottish version conceivable. The alternative is to create institutions more willing and able to provide the checks and balances that the current Scottish Parliament has failed to deliver. Reforming our committees, extending Parliamentary privilege to MSPs and improved resourcing of Holyrood are needed but none of that will necessarily alter relations between central and local government.
The idea of a second chamber is worth consideration. A Scottish second chamber has been mooted and dismissed over the years. As Presiding Officer, David Steel raised the possibility but was mocked for suggesting something critics chose to interpret as a second House of Lords. Cheryl Saunders, Australian constitutionalist and one of the world’s leading scholars in this field, warned that the rationale for bicameralism was difficult to establish ‘beyond a general belief in the value of a second opportunity for deliberation, whatever the party composition of the second chamber’.
Second chambers in sub-state legislatures are not the norm. They have disappeared in Canada but continue to exist at this level in Australia and the United States. A 2001 study found that only 73 of over 450 sub-state legislatures were bicameral. Bicameralism is the norm in federal states with one chamber providing representation to the components of the state. Instead, the devolved UK retains its perverse second chamber with its mix of hereditary peers, bishops and appointed life peers rather than a chamber representing its nations and regions. Bicameralism is less common at state or provincial level though all but one US state (Nebraska) has a bicameral legislature. Though operating at federal level, the German Bundesrat offers an interesting model of a chamber which has powers of veto in some areas of policy and can offer opinions in other areas. It has proved an effective voice for the German Länder.
The usual nature of bicameralism should not prevent its consideration in Scotland so long as we take full account of Saunders’ observation. We need more than a general belief in its value. We require a clear purpose which will have an impact on its composition. The obvious purpose and consequent composition would be a means of providing local authorities with an authoritative voice at the centre, the opportunity to put the brakes on further centralisation and ensure that the local impact and implementation of policies are taken into account. An increasing number of constitutions recognise the autonomy of local government. The German Grundgesetz (Basic Law) was the first to recognise local self- government in a formal constitution.
A localist logic to a new second chamber would give it a clear purpose. Under this logic the second chamber need not be large. It might even be indirectly elected, consisting of elected councillors who might not need to meet as frequently or regularly as existing MSPs. We might be bolder still and adopt sortition, selecting its membership by lot, or some mixed method.
Holyrood needs to revive its commitment to power sharing and subsidiarity. At its inception, the Scottish Parliament could legitimately claim to be bold and innovative. It can be again.
See also Declaration on local democracy