Is Holyrood bad at making laws? | UK News

In the space of just over a week, MSPs have discovered that one bill they passed had blown a £400m hole in the tax code, another needs to be updated to deliver on its original purpose, and a third still hasn’t been implemented after five years.

Each example speaks to a particular problem in lawmaking – which after all is Holyrood’s core purpose.

With the remaining days of term before next May’s election fast ticking down, MSPs are still working through a huge stack of legislation.

Sometimes that means sitting until 22:00 to agree reforms that have been years in the making – but it’s worth examining whether the end product does the job it’s intended to.

Perhaps the most worrying example was the discovery of an error in the tax code which left tens of thousands of businesses paying rates they legally didn’t have to.

Following a routine inquiry from a council, government officials were examining the rules around non-domestic rates when they had the ultimate “uh-oh” moment.

While passing a bill aimed at handing more responsibility to councils in 2020, MSPs had accidentally removed the legal basis for levying the tax on empty properties.

In a bid to avoid a £400m bill for refunds, they had to thrash through an emergency bill in the space of 48 hours to retrospectively bring the letter of law into line with what everyone thought it was.

In fairness, the law on non-domestic rates is notoriously complicated.

Parts of it date back to the 1850s, and there have been more than 150 revisions since then.

The blunder MSPs corrected last week involved the repeal of measures passed in 1956.

As Public Finance Minister Ivan McKee pointed out, it was missed by government lawyers, parliament lawyers, tax experts and academics who helped scrutinise the bill.

The Conservatives have warned of a “significant” risk of legal challenge against this retrospective rewriting of the rules, although the business groups I’ve spoken to seemed rather more sanguine.

Fingers will no doubt be crossed, because the government has a decidedly mixed record when it comes to defending legislation in court.

There have been some wins, over minimum pricing and the freeze on rents and evictions during the cost of living crisis.

But there have been notable defeats on the named persons system, the deposit return scheme and gender balance on public boards – the latter case snowballing into a Supreme Court case with UK-wide consequences for the rights of women and trans people.

The hope here is to avoid costly litigation.

But this is not the only bill which appears to require retrospective surgery.

The government has just announced that it is bringing forward new legislation next year on the visitor levy – better known as the tourist tax.

The legislation underpinning it was passed last year, creating the power for councils to impose a charge on overnight accommodation like hotels, B&Bs and holiday cottages.

But after some debate the bill specified the tax as a percentage of the overall bill for the stay, rather than a flat cash amount – so 5% rather than £5.

After requests from councils and further dispute in parliament, new legislation is now being drafted to allow both options.

It is obviously far from ideal to have to pass a second piece of primary legislation to achieve a singular aim, and opposition MSPs have hit out at what they call a “cack-handed” handling of the issue.

This wasn’t a problem with the drafting of the bill, but rather the thinking behind it. So there can be problems even when the law is technically watertight.

On the very same day the new visitor levy bill was announced, concerns were raised about a law passed in 2020 about female genital mutilation.

The practice has been illegal in the UK since 1985, but the bill sought to create protection orders to strengthen safeguards for women.

It was unanimously passed – but five years after landing on the statute book, the law has still not actually come into force.

Minister Kaukab Stewart told MSPs that time was needed for councils, health boards and justice agencies to put resources in place, develop processes and train staff.

This kind of delay is not uncommon.

Provisions of a law passed in 2016 to update regulations for burials and cremations are set to come into force next March – just days before of the ten-year anniversary of MSPs passing them.

And some laws don’t even have that kind of target date.

Holyrood passed the Air Departure Tax Act in 2017, but leaders remain no closer to figuring out how to make it work with both state aid rules and the existing exemption for local airports in the Highlands and Islands.

Implementation of a landfill ban has been kicked two years down the road after it transpired it would require shipping 100 truckloads of waste to England each day.

Meanwhile a licensing regime to clamp down on misuse of fireworks – signed off in 2022 – has also been “paused” due to concerns about costs.

We shouldn’t overstate things, because MSPs pass dozens of bills in every term of parliament, some containing seismic reforms, with no problems whatsoever.

But are they making law in the best way?

Members have voiced concerns about the frequency of late-night sittings where they pore over hundreds of amendments to weighty bills.

The vast justice reform bill saw 160 amendments debated in a single marathon sitting, and Labour’s justice spokeswoman Pauline McNeill said there was “simply not time” to understand them all.

If even the experts risked getting lost, how were backbenchers meant to keep track of the shape of the law they were voting on?

Part of this is about the partisan approach of political parties, scoring points by pressing amendments even knowing they will fail – like the Tory attempts to wedge a grooming gangs inquiry into that justice bill.

But that is only really possible when the government brings forward such wide-ranging bills like those on justice, housing and land reform, each of which easily could have been broken down into two or three smaller laws.

There are worries about the quality of legislation even deeper in the machinery of parliament too.

There is a constant churn of secondary legislation – smaller instruments which tinker with the law rather than rewrite it entirely – moving through Holyrood’s committees.

There have been concerns that this pipeline is increasingly choked with post-Brexit measures, as the statute book creaks into line behind our new constitutional arrangements.

But we’ve got to the point where the mild-mannered delegated powers committee felt the need to sound the alarm about “a marked decline in the quality of instruments” they were examining.

Convener Stuart McMillan told MSPs that some instruments contained flaws so serious they were considered “defective”.

The committee hoped that shouting about this would lead to a change for the better in terms of drafting.

And the legislative troubles of the past fortnight should be a wake-up call to MSPs too.

Perhaps May’s election will be the moment for a reset.

A record number of MSPs are stepping down, and still more may lose their seats. It’s entirely possible the next parliament will contain an outright majority of first-time lawmakers.

Over a five-year term they will consider dozens of bills. Hopefully the lessons of the past fortnight will help make sure those laws are sound.