How the Scottish Parliament went from legislating to virtue signalling

At the end of an angry debate in which, at times, contempt from MSPs towards colleagues was barely hidden, Ash Regan made a final, futile appeal for support.

Her ‘Unbuyable’ prostitution bill was about to fall, and frustration came from the former community safety minister in waves. 

The bill was too much, too late, the government said, and could not be passed in the time remaining in this parliamentary session: too many amendments were needed and the complexities were insurmountable with dissolution looming.

“If this is beyond the capability of this parliament and 128 MSPs in the two remaining months of a five-year parliament,” Regan said, “the public are going to ask us what the hell are we doing here.”

Some members looked exhausted. Summing up for the government, current community safety minister Siobhian Brown was urged, off mic, to “just keep going” by a frontbench colleague. “We’ve got around 22 sitting days left in this parliament,” Brown said, highlighting fears that approval could lead to unintended harm to those selling sex. “Do members really believe that there is enough time to sufficiently address that concern, as well as many other flaws that have been highlighted in the bill?”

The question met a voluble response – heckles of “yes”, and “of course there is”. “The bill was introduced just eight months ago,” she had earlier said, and if Regan had “introduced it in May 2024, we could maybe have worked together to get it in.” 

There will be bills that are strong that will fall and shouldn’t

It has been a torrid five years, and the term’s final weeks will not be easy. A backlog of bills and Scottish statutory instruments (SSIs) stands between now and the final sitting day of 25 March – a mix of government and member’s proposals including big-ticket items like the assisted dying bill. The volume of outstanding work led to the cancellation of February recess. But it’s just not enough time to get through everything and some are bound to fall. 

Meanwhile, there has been vocal debate about how things are scheduled, what support MSPs are given to pull their member’s bills together, and whether parliament has its priorities right. That time has been found for several bills on dogs has stuck in the craw for some. “You are better protected in Scotland if you’re a dog than if you’re a girl or a woman,” commented Regan. For others, her stance was over-simplistic. “We cannot wish away prostitution,” said Scottish Lib Dem leader Alex Cole-Hamilton, whose party opposed the bill.

Almost 50 acts of the Scottish Parliament have been passed since the last election and a score of bills remain on the slate as dissolution looms. Each one eats up parliamentary bandwidth through consultation, committee and debate, and then there’s the drafting process. The Non-Government Bills Unit recommends MSPs allow at least 18 months for member’s bills to go through the system and to seek help in the first half of the parliamentary session, with no new business ordinarily accepted after the start of June in the year preceding an election.

Regan did seek help from the unit, but it was at capacity and could not help, parliament heard, leaving her and her team to do the hard graft in an area of the law which triggers strong reaction, and strong words. 

The result was introduced to parliament just a month before the deadline and was, in the words of a woman involved in the sex trade who was quoted by Scottish Green equalities spokeswoman Maggie Chapman, “patronising” and “based on sensationalist stereotypes”. An angry Michelle Thomson disagreed. “Who here would tell a constituent who cannot afford to put food in her mouth that the solution is to put male members in her mouth?” she asked. 

“Concerns were shared with her that there wasn’t enough time to do this and she thought, well, I’ll try,” a parliamentary source said of Regan. “You get advice that you can take or leave.”

Regan’s former SNP colleague and ex-parliamentary business manager Jamie Hepburn said the independent MSP had taken on an “onerous” task. “We need to consider parliament’s capacity to support its members to take forward and refine legislation,” he said. “We are, after all, a legislature.”

There’s agreement about that from some MSPs, but any move to increase the unit’s capacity must surely carry an additional cost. At a time when any parliamentary spending is often characterised as largesse, any increase must be value for money. And there’s a lack of agreement on whether all of the proposals emanating from the unit fit that definition.

“There will be bills that are strong that will fall and shouldn’t; there will be others that aren’t particularly well-developed and should,” said one MSP. “Some people see a bill as their legacy. They just find something and try to get it passed,” said another. Some by veteran members are “almost given instead of a carriage clock or a long-service medal”, rather than for their value to the public, another quipped. 

Patrick Harvie of the Greens accused former Scottish Conservative deputy leader Meghan Gallacher of having “wasted” parliamentary and staff time on a bill that was “palpably unnecessary” with her bid to criminalise the desecration of war memorials. The proposal, which sought a specific offence for an act which is already illegal, was withdrawn by Gallacher during its stage one debate. The bill wasn’t the right way forward, she said, agreeing with culture secretary Angus Robertson that, instead, all parties across the parliament should commit to legislating for a statutory aggravation in the next parliamentary session. 

Then there’s the dog theft bill brought forward by her partymate Maurice Golden, which also introduces a specific offence for something covered by existing laws. And then there’s the greyhound racing ban proposed by Harvie’s colleague, Mark Ruskell, which aims to prevent a sport that is not currently practised in Scotland from being practised in Scotland ever again – on an oval-shaped track, at least. 

Both followed Christine Grahame’s Welfare of Dogs Bill – which requires the government to produce a code of practice for those looking to take on a pet. 

The volume of canine-themed business was not lost on Highlands and Islands member Rhoda Grant. In the debate on Ruskell’s bill, Labour’s Grant said working on legislation that is “just sending a signal” is a “luxury” Holyrood cannot afford. “Essential legislation that we need to pass is coming forward – legislation that will make a huge difference to people’s lives”, she said, while her partymate Davy Russell accused the Green MSP of “chasing headlines”. Holyrood’s “limited bandwidth”, he said, should be used for “more meaningful issues”, and the NHS and cost-of-living crisis are “higher up the list of Scottish people’s concerns”.

Of course legislation is sometimes about sending a message

The statement is, one MSP suggested, naïve. “Of course legislation is sometimes about sending a message. If you asked what your constituents’ priorities were, there would be some that wouldn’t make it through.”

Still, the sense of exasperation Grant and Russell expressed is felt more widely, with much of it directed towards the government, which has been accused of hypocrisy over its insistence that there was no time to amend Regan’s bill. “When the government wants to do something, it finds the time to do it,” said Tory Liam Kerr. 

And he had a list at his fingertips: emergency legislation to release criminals early from prisons; the Victims, Witnesses, and Justice Reform (Scotland) Bill pushed to stage two and then subject to almost 300 stage two amendments; 500 stage two amendments for the Land Reform (Scotland) Bill, which were considered in five committee sittings over four weeks; late night sittings for the Natural Environment (Scotland) Bill. “That suggests to me that the time is there, unless the government does not want it to be,” he said.

Indeed, some pieces of legislation have eaten up swathes of parliamentary time during this session. The trouble is, the biggest and most time-consuming of these – the Gender Recognition Reform (GRR) Bill and the Deposit Return Scheme (DRS) – were unsuccessful, both having been blocked by Westminster for overstepping parliamentary competency.

Consulted on before the last election, the GRR Bill was picked up again after the 2021 result and, in the dying days of business before Christmas 2022, MSPs sat long into the night to debate more than 150 amendments to the government bill. Altogether, the sessions ran to around 24 hours. 

When then-Scotland Secretary Alister Jack struck it down, more debates and questions were, understandably, tabled. After all, everyone had a view on what had been and continues to be a charged issue. Almost 70 per cent of MSPs voted for the legislation – politicians of every party. 
DRS similarly found backing across the aisles before it was shelved over post-Brexit trade rules.

And so, when it comes to wasting parliamentary time, it could be argued that it’s not simply a government problem.

Parliamentary business manager Graeme Dey has said there is an effort to “balance a number of asks and pressures in coming to the schedule of business”. In this session, that balance has often been skewed by row, scandal and leadership change: unplanned issues that have absorbed capacity. Let’s not forget that there have been three FMs since Scotland last voted. There’s also been Michael Matheson’s iPadgate, for instance, the months-long row over Angela Constance and grooming gang action, and accusations of bias against Presiding Officer Alison Johnstone – accusations that she’s rejected twice in official statements. And then there was gullgate, which itself was triggered by a dispute over parliamentary time and saw Dey’s predecessor Hepburn lose his portfolio.

Hepburn quit the frontbench after losing his rag with ex-Tory leader Douglas Ross in September when the pair clashed over the scheduling of a summit on seagulls. What began in the chamber, and on record, spilled into the corridor and Hepburn admitted he his conduct had fallen “well short”.

As we approach dissolution, it is the question of what meaningful progress has been made during this parliament is an obvious one. The first term created national parks, while the second had the smoking ban. In the third term MSPs agreed the setting of climate change targets and abolition of prescription charges, and same-sex marriage, minimum-unit alcohol pricing and the referendum bill followed in the fourth. Organ donation was reformed in the fifth parliament, with the age of criminal responsibility raised from eight to 12. 

And so the question remains: what piece, or pieces, of legislation will define this term? Gillian Mackay’s abortion buffer zone bill may well be one. The abolition of the not-proven verdict will surely be another.

Katy Clark’s Freedom of Information reforms may have been passed at stage one, but that vote came with the caveat that they cannot be finalised before May, with MSPs backing a Tory amendment that said they should instead “be addressed in the next parliamentary session”.

The government having the majority with the Greens had a massive impact

On the slate still remain proposed reforms which, cumulatively, would have a major impact on Scottish life, from Monica Lennon’s Ecocide Bill, which aims to increase culpability for pollution incidents, to Graham Simpson’s Recall and Removal of Members Bill, which seeks to tighten up rules around MSP performance and conduct; from the SSI adding misogyny to the Hate Crime Act to Liam McArthur’s Assisted Dying For Terminally Ill Adults Bill, a hefty piece of legislation which requires detailed consideration.

How far any of these will get remains to be seen. But, reflecting on the term, one MSP said that the biggest single determinant on how business was conducted during this parliament was the Bute House Agreement, which brought the Greens into government with the SNP. Initiated by Nicola Sturgeon to protect her then-deputy John Swinney from a confidence vote, it was ended by her successor Humza Yousaf after Green members threatened a rebellion against their party’s leaders over the government’s handling of climate action and hormone treatment for transgender teenagers.

The backing of the Greens insulated the SNP from outside attacks and made doing business harder, it is claimed. Since that ended, there has been more of an emphasis on cross-bench working. “The government having the majority with the Greens had a massive impact on how they did business. Whereas before we would have had a lot of negotiation and courting of opposition members and taking in their ideas and helping them develop them, when there was a majority that just stopped,” one MSP said. “That creates a different atmosphere.”