| FOUR - THE SCOTTISH PARLIAMENT |
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This section reviews the Scotland
Bill 1998 and the checks and balances it contains relating to the Scottish
Parliament and the Scottish Executive. Legal and constitutional checks on
the powers of a parliament and executive will always depend on the way the
legal framework interrelates with the political behaviour and culture in
the jurisdiction concerned. The following elements in the Scotland Bill
are identified as potential checks on the powers of the Parliament and the
Executive. They follow the same categorisation as in the previous chapter:
1 - Constitutional Framework, 2 - Parliament Design and Process, 3 - External
Checks. |
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| 1 - Constitutional Framework |
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| Electoral System |
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- The proportional representation electoral
system in Scotland is likely to provide a better quality check on the
power of the parliament than a first past the post system. In principle
it will enhance the Parliament's democratic legitimacy because parties
will be represented in proportion to their support amongst voters.
- A Parliament of 129 members is large enough
for a well staffed committee system.
- The fixed four year term of the Parliament,
except in exceptional circumstances, will increase the authority of
the Parliament in relation to the Executive.
- Allowing the Lord Advocate and Solicitor
General to sit and speak in the Parliament, without vote if they are
not Members also means the Parliament will have the advantage of Scotland's
senior law officers' input in its deliberations.
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| Quasi-Federal Relationship
and Competence |
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- Scotland will be in a position in relation
to Westminster similar to that of Queensland or Quebec in relation to
their federal capitals. The major difference for Scotland is that Westminster
retains ultimate sovereignty, and is the guardian of Scotland's Constitution;
retaining the power to over turn any legislative act of the Scottish
Parliament. In this respect Scotland is closer to the position of the
Australian self governing Territories
- The Australian Northern Territory recently
experienced the reality of Canberra's ultimate legislative power when
Canberra overturned by federal statute a new Northern Territory law
which legalised euthanasia. The federal statute was highly unusual and
the political fall out in the Territory was significant, with the conservative
Chief Minister (who was against euthanasia) decrying the passage of
the federal legislation as an unwarranted intrusion in the autonomy
of the Territory. The incident is an example that what may be constitutionally
legitimate in legal terms may, as self governing areas became used to
their legislative competence, be politically inappropriate.
- As with the Canadian Provinces or the
Australian States, the Scottish Parliament has the inherent limitation
of being a parliament operating within a quasi-federal framework of
delineated competency. Within the system there is another government
(Westminster) operating which will be watching to ensure that the devolved
assembly does not encroach on matters remaining within Westminster's
exclusive competence. Additionally the competence of the Scottish Parliament
is limited by the European Convention on Human Rights and European Law.
- There is an intricate range of provisions
to ensure that the Scottish Parliament stays within its competence.
These range from pre-legislative scrutiny through to post-legislative
judicial challenge.
- In terms of protection of basic constitutional
provisions, such as the term of the Parliament, or the electoral system,
the Scottish Parliament will simply not have the power to amend those
provisions, which, along with the rest of the Scotland Act, are reserved
matters, beyond the Scottish Parliament's competence.
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| Relationship of the Scottish
Executive to the Parliament |
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- The Scottish Executive will be drawn from
the Parliament and as in Westminster will be nominally answerable to
the Parliament. Another innovation which is likely to enhance the Parliament's
role as scrutineer of the Executive is that the First Minister must
have the Parliament's approval of his or her choices for Ministers.
Further, the Lord Advocate and Solicitor General are both to be Cabinet
members, even if they are not Members of the Scottish Parliament.
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| 2- Parliamentary Design and Procedure |
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| Standing Orders |
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- The Scottish Parliament must pass standing
orders. The Scotland Bill contains a number of requirements for the
Standing Orders which will provide checks on the power of the Parliament.
Although a committee system is not mandated it is strongly contemplated.
The standing orders provide for three main stages in consideration of
bills:
1. a general debate on a bill's principles,
with the opportunity to vote on the basic principles,
2. opportunity to debate and vote on the
detail of bills (usually a committee stage), and
3. a final voting stage.
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| 3 - External Checks |
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| Audit |
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- There is a wide ranging audit function
provided for in clause 66 of the Bill. This clause requires the Parliament
to create audit machinery capable, not just for dealing with matters
of financial accountabilitv but also to consider issues of "economy,
efficiency and effectiveness". The accounts prepared and reports
written in connection with the audit are then placed before the Parliament.
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| Ombudsman |
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- The Scottish Parliament' is to set up
an office of Ombudsman along the lines oft he UK one, complete with
the MP filter (clause 86).
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| Conclusion |
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| The Scottish Parliament will
have, in relation to the six other parliaments considered, a comprehensive
range of checks on its powers. It will also have checks unique to its own
constitution, such as the powers of the United Kingdom's Secretary of State
for Scotland. The few extra checks which have been identified in other jurisdictions,
which Scotland does not have, such as minority procedural rights, recall,
or initiative, given the whole scheme of the Scotland Bill are not currently
necessary. |
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| The Bill should result in a Parliament
which will serve Scotland well in the same vein as the Swedish Riksdag or
the Danish Folketinget. Given the novelty of the arrangements contained
in the Bill in the context of the United Kingdom's constitutional history,
and the need to see how the system works in practice before making final
judgements, it would be prudent to provide for two review mechanisms: |
| 1. A Scottish Parliamentary Committee
with an ongoing constitutional review function along the lines of the Swedish
Committee on the Constitution, or the similar Queensland parliamentary committee,
and |
| 2. an independent review commission
in Scotland meeting in five years time to consider the role of the Scottish
Parliament in the evolving scheme of Scotland's and the United Kingdom's
constitutional architecture. |
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| The precise tilning of the review
is a matter of political judgement: the interval proposed here would initiate
the review towards the beginning of the second term of the new Parliament. |
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