Scottish parliamentarism and the Presiding Officer's certificate

ABSTRACT

This article discusses the law, context, culture, and practice behind the Presiding Officer’s certificate in the Scottish Parliament. In doing so, it uncovers the importance of Westminster parliamentary culture in Scottish governance. The Presiding Officer’s certificate, which indicates whether the Presiding Officer believes that legislation is within the Scottish Parliament’s competence, sits uncomfortably with Scottish parliamentary culture. The certificate is similar to procedures in Nordic parliaments, but not Westminster-style parliaments. When this procedure came under pressure, the importance of Westminster parliamentarism in Holyrood became clear. The certificate is compared to the Commons Speaker’s role under English Votes for English Laws. Scotland is still learning to harmonise its institutions with its parliamentary culture.

KEYWORDS:

• Scottish parliamentarism
• presiding officer
• EVEL
• devolution
• commons speaker

1. Introduction

On the eve of a new millennium, Scottish devolution was conceived both as a new locus of power and also a new way of exercising power. First-past-the-post was replaced with mixed-member proportional representation, an upper house was replaced with a unicameral parliament and powerful committees, and opposing benches were replaced with a horseshoe chamber. Nordic assemblies inspired many of the new institutional designs. This paper discusses one less high profile but arguably highly significant aspect of the Scotland Act – one that did receive significant attention in parliamentary debates on the Scotland Bill – the role of the Presiding Officer in ruling whether legislation is within devolved competence. The Scottish Parliament elects its own Presiding Officer by secret ballot in run-off elections. As in other parliaments, the Presiding Officer is in charge of chairing debates, keeping order in the chamber, and representing parliament externally. The Presiding Officer’s certificate (which indicates the officeholder’s view on whether a bill is within vires, that is, within devolved competence) is, in effect, a statutory function for the Presiding Officer to place a significant impediment in the way of the Scottish Government’s legislative agenda where necessary; this has no parallel among the functions of the Speaker in the House of Commons. The procedure is similar to those found in Nordic legislatures. This issue raised questions about the character and powers of the new parliament. This is not just an issue concerning the legal limits of the Scottish Parliament’s legislative powers, it brings into relief wider points of distinction and convergence between the parliamentary cultures of Holyrood and Westminster. By tracing this under-explored provision, we are confronted with Scotland’s Westminster parliamentary culture in a ‘New Politics’ parliament.

This article starts by describing the Presiding Officer’s certificate and recounting its debate in Westminster. Debates were premised on Members of the Scottish Parliament’s (MSPs) relationship with the Presiding Officer being similar to the Commons’ relationship with the Speaker. The article then gives an historical and political account of the Commons speakership and argues that it would sit uneasily with a certificate similar to that of the Presiding Officer. The Speaker’s distinctive role under English Votes for English Laws (EVEL), which did not follow the template set by the Scotland Act, exemplifies this. This leads to analysis of the Scottish Government’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (‘the EU Continuity Bill’ henceforth), where the Presiding Officer’s certificate took centre stage. A negative certificate sat uneasily with Scottish parliamentarism, which is heavily influenced by its historical and continued relationship with Westminster.

2. Designing the presiding officer’s certificate

2.1. Form and origins

On every bill introduced to the Scottish Parliament, the Presiding Officer issues an advisory certificate. The certificate indicates whether the legislation is, in the view of the Presiding Officer, within the Scottish Parliament’s vires. Whether it is negative or positive does not trigger any special procedures in the legislative process. The certificate is required by section 31(2) of the Scotland Act, and under section 31(3) it is for Standing Orders to dictate the manner and form of these statements. Rule 9.3.1 of the Standing Orders states that

A Bill shall on introduction be accompanied by a written statement signed by the Presiding Officer which shall—

1. indicate whether or not in the Presiding Officer’s view the provisions of the Bill would be within the legislative competence of the Parliament; and

2. if in the Presiding Officer’s view any of the provisions would not be within legislative competence, indicate which those provisions are and the reasons for that view.

The Presiding Officer receives advice from the Office of the Solicitor to the Scottish Parliament and, if it is a public bill, discussion may be held with the Scottish Government Legal Directorate (McCorkindale & Hiebert, 2017, p. 326, 335–6). The decision is the Presiding Officer’s to make and it is not mandatory for the Presiding Officer to reveal any legal advice they received. Regardless of whether the Presiding Officer’s certificate is positive or negative, the Scottish Parliament is free to proceed with the bill in the usual manner. Similar procedures can be found in The Government of Wales Act 2006 and the Northern Ireland Act 1998.¹ This article describes the statement as a ‘certificate’ because this is the shorthand language used in the Scottish Parliament (see, for example, McGrath & McIver, 2018, p. 18). The official title for the certificate is a ‘statement on legislative competence’. However, ‘certificate’ more accurately captures the essence of the function, which is an official, written opinion attached to a bill. It certifies the Presiding Officer’s informed legal view on a bill’s vires.

The Presiding Officer’s certificate may be understood further by its purpose and use. The purpose of the certificate is to decentralise and enhance ex ante review on legislative competence and to make MSPs aware of competing interpretations of the law where necessary. McCorkindale and Hiebert demonstrate that, in forming their view, the Presiding Officer brings to bear the full technocratic expertise of the legislative branch (McCorkindale & Hiebert, 2017, pp. 334–8). Therefore, when a government bill is introduced, MSPs are also furnished with the opinion of a strictly non-partisan officeholder (the Presiding Officer) and their staff. Competence issues are not merely a government affair. It could further be argued that the certificate is especially important for Members’ bills. Here, the MSP introducing a bill may have had limited resources to scrutinise vires. In the hierarchy of checks, discussed below, a judgment from the judiciary is unavailable until a bill has already been passed.² Therefore, the Presiding Officer’s certificate is both an added layer and an added dimension to ex ante review. An additional view on vires is made available to MSPs and this view originates from a distinct branch of government, the legislature rather than the executive. That being said, this is still a bureaucratic rather than strictly legislative review because it involves the Presiding Officer and the parliamentary secretariat rather than MSPs (McCorkindale & Hiebert, 2017, p. 329).

The normal use of the certificate is also instructive of why the EU Continuity Bill process was so fraught, a topic discussed later in this article. Politically, a negative certificate places a significant impediment in the way of legislation. This can be seen in the numerous failed Members’ bills that have received a negative certificate (McCorkindale & Hiebert, 2017, pp. 333–4). This explains why, in practice, governments have been so averse to introducing legislation that might attract a negative certificate from the Presiding Officer. McCorkindale and Hiebert paint a picture of a well-oiled (if imperfect), technocratic machine that ensures that any concerns the Presiding Officer may have regarding a government bill’s vires are alleviated before its introduction. In this study, while officials in the executive did not rule out the possibility of introducing a bill under a negative certificate, there was a clear pattern of conduct to avoid this (McCorkindale & Hiebert, 2017, pp. 333–8). The cooperation of the Presiding Officer and their advisors shows that both sides were keen to avoid a negative certificate. Therefore, the political ramifications of this certificate are understood by both the Presiding Officer and the government.

The Presiding Officer’s role in assessing the competence of a bill is comparable to those in Nordic parliaments. In Sweden, the Speaker may refuse a motion if they deem it unconstitutional (including legislation). The Riksdag Act reads that

If the Speaker considers that a motion conflicts with fundamental law or with this Act, he or she shall decide not to put the question, stating the reasons for the decision. If the Chamber requests the question be put, the matter shall be referred to the Committee on the Constitution for decision. If the Committee has declared that a motion does not conflict with fundamental law or with this Act, the Speaker shall put the question.³

This allows for disagreements between the Speaker and legislature, particularly the legislature choosing to push ahead with a motion that, in the Speaker’s view, is unconstitutional. Furthermore, a committee of the legislature can overrule the Speaker’s decision. A Constitution Unit report from 1998 also highlighted the link between the Presiding Officer’s certificate and the role of the Swedish Speaker (The Constitution Unit, 1998, p. 38). In Finland the situation is similar. The Chair effectively has a veto over legislation they find to be unconstitutional unless parliament is willing to explicitly reject the Chair’s decision and refer the matter to the Constitutional Law Committee.⁴ Similarly in Denmark, where the Chair finds a bill or amendment to be unconstitutional (after consulting with the Standing Orders Committee), they recommend to Parliament that it be rejected and this is not open to debate.⁵

The Presiding Officer’s certificate represents a rupture with traditional Westminster-style procedures. Bergougnous, in his analysis of presiding officers across the world, draws particular attention to this distinctive feature of Westminster-style parliaments (Bergougnous, 1997, p. 89). The Nordic provisions discussed above are more similar to those in Scotland, because (in Finland and Sweden) they represent a non-binding check by the chair when legislation is introduced. Parliaments are free to disagree with the chair and refer the matter to another body for consideration. On the other hand, in France, legislation may simply be brought by the Chair before the Constitutional Council in some circumstances.⁶ This seems to be a far less prominent trend in Westminster-style parliaments. In the Republic of Ireland, where the constitution was influenced by the Westminster system, the Chair is part of the Council of State, but this type of constitutional advice is less likely to drag the officeholder into open conflict with the legislature.⁷

The extent to which the Presiding Officer’s certificate is directly modelled on Nordic assemblies and their ethos is debatable. Likely, it was designed as a pragmatic, early-stage check on vires and its form was inspired by Nordic comparisons. As discussed in subsection 2.3 below, the Scottish procedures were altered during the Scotland bill’s passage through Westminster and they represent a compromise between the Houses of Lords and Commons. Also, debates on the role of a presiding officer in a devolved Scottish assembly to assess competence at the pre-enactment stage date back to the 1970s Home Rule process. The point of comparison here was the Northern Ireland Constitution Act 1973, however it was acknowledged that a Scottish Presiding Officer would have a distinct role to the Clerk of the Assembly in Stormont ‘because of the dominant role of the Secretary of State for Northern Ireland’ ((Gay, 1998, p. 15), and see also (Comments on White Paper ‘Our Changing Democracy: Devolution to Scotland and Wales’, 1975, sec. 46)).

Regardless of the extent that the procedures were drawn directly from Nordic comparisons, on paper at least they are another feature of the Scotland Act that is distinct from Westminster traditions and similar to those in Nordic states. It is probably for this reason that the Constitution Unit report on the Scotland Act draws particular attention to the Swedish Riksdag (The Constitution Unit, 1998, p. 38). The Presiding Officer’s certificate is therefore comparable to functions found in other legislatures, but not many Westminster-style parliaments.

2.2. The hierarchy of checks

The Presiding Officer’s certificate is only one aspect of an extensive system of checks on acts of the Scottish Parliaments’ (ASPs) competence. Pre-enactment checks on competence include the executive, legislature, and judiciary. McCorkindale and Hiebert identify three pre-enactment mechanisms for vetting a bill’s competence: the relevant minister’s statement that in their view the bill is within the Parliament’s legislative competence; the Presiding Officer’s statement on whether or not, in their view, the bill is within legislative competence; and the four-week period between the bill’s passage through Holyrood and submittal for Royal Assent where the Law Officers may make a reference to the Supreme Court for a judgment on its legislative competence (McCorkindale & Hiebert, 2017, p. 321). Hazell also notes this ‘triple lock’ on pre-enactment review (Hazell, 2007, pp. 585–6), and further mentions a ‘safety valve’, which is the power of UK ministers to prevent certain bills from being submitted for Royal Assent and ‘repeal’ those ASPs which are deemed to be ultra vires (Hazell, 2007, p. 584; see also ss 35 and 107 of the Scotland Act 1998). This power is more of a political check than one on vires.

The Presiding Officer’s certificate does not occupy a more legally prominent position than the relevant minister’s statement. It is compulsory for the minister to issue a positive statement of compatibility. This is designed to ensure that the Scottish Government thoroughly considers compatibility issues with each bill, and the Lord Advocate would probably consider it a ‘resigning matter’ if a minister intentionally introduced ultra vires legislation (McCorkindale & Hiebert, 2017, pp. 333–4). It is worth mentioning, therefore, that although the minister must give a positive view under the Scotland Act, this does not make their view a mere formality. It encourages genuine consideration of a bill’s vires. On the hierarchy of checks, there does not seem to be a hierarchical relationship between the minister’s statement and the Presiding Officer’s certificate. Instead, they are intended to merely inform MSPs in their duties.

The Scottish Parliament’s committees were also designed to prevent ultra vires legislation, particularly in the form of Members’ bills. Under Rule 9.14.18(b) of the Standing Orders, the lead committee can decide and report to Parliament that the provisions of a Member’s bill are ‘clearly outwith’ legislative competence (that is, clearly ultra vires).⁸ For example, the Provision of Rail Passenger Services (Scotland) Bill, introduced by Tommy Sheridan on 29 September 2006, was the first bill to receive a negative certificate. The bill was referred to the Local Government and Transport Committee, which agreed with the Presiding Officer’s statement, but did so in a way that acknowledged the autonomy of its own judgement. The committee had ‘regard’ for the Presiding Officer’s statement, but also took advice from Parliament’s Directorate of Legal Services and a parliamentary secretariat briefing paper. Going beyond the Presiding Officer’s statement, and considering its duty under the Standing Orders, the committee emphasised that Parliament was unlikely to be able to bring the bill within devolved competence at stages 2 and 3 (Himsworth, 2007, p. 399). The test of ‘clearly outwith’ devolved competence is looser than that applied by the Presiding Officer, who seems bound to advise on the balance of probabilities.⁹ On the other hand, during the Justice 2 Committee discussion of the Civil Appeals (Scotland) Bill (another Member’s bill), the convenor took the view (under protest from some committee members) that it was outside the committee’s remit to challenge the Presiding Officer’s decision without further legal advice.¹⁰ Therefore, McCorkindale and Hiebert do not include this as a serious pre-enactment check on legislative competence, instead emphasising the Scottish Parliament’s ‘bureaucratic review’ process, that involves a small number of officeholders, rather than legislative review (that ought to involve MSPs more broadly) (McCorkindale & Hiebert, 2017, p. 329).

ASPs may be judicially reviewed at either the pre- or post- enactment stage. This review has the power to declare ASPs ‘not law’, and the judiciary has been clear that the Presiding Officer’s certificate is neither binding nor persuasive. Lord Hope most memorably described the Presiding Officer and minister’s statements as ‘no more than statements of opinion which do not bind the judiciary’.¹¹ Similarly, in Imperial Tobacco it was said that:

These statements cannot influence the court’s decision of a question of law: the court must reach its decision independently of the Scottish Executive or the Presiding Officer.¹²

Therefore, not only is the Presiding Officer’s certificate not binding on the judiciary, but judges have also emphasised that it is not even persuasive. It is simply the ‘opinion’ of the Presiding Officer and limited in its utility to the internal proceedings of the Scottish Parliament. The court does acknowledge the certificate’s importance for Holyrood’s internal proceedings. However, its weight does not extend beyond this. The certificate shares this status with the minister’s statement.

By viewing these various checks in the round, we see how they form a hierarchy. At the top of this hierarchy sits the judiciary. No matter what the view of the Presiding Officer or the relevant minister, the judiciary is the ultimate arbiter of whether a bill or ASP is within devolved competence. Not only this, but the utility of the Presiding Officer’s certificate is confined to the legislature. The views of the Presiding Officer and relevant minister have an equal footing legally in that they do not bind either the legislature or the judiciary in their own views on vires. The Presiding Officer’s certificate only has special significance in the case of Members’ bills. Because the UK minister’s ss. 35 and 107 powers are open to judicial review, they are also lower on the hierarchy of checks than the judiciary. They may, however, be enforced despite a positive certificate from the Presiding Officer.

In the final analysis, there is a comprehensive system of checks on the vires of ASPs at both the pre- and post-enactment stages, of which the Presiding Officer’s certificate is but one. The checks form a hierarchy, where the findings of some officeholders supersede those of others. The Presiding Officer and the responsible Scottish minister are at the bottom of this hierarchy. Their views are purely advisory, and they advise only MSPs. A bill may continue its passage in the event of a negative certificate from the Presiding Officer. At the top of the hierarchy of checks is the judiciary. Courts have the power to declare ASPs ‘not law’, and judgments are made wholly independently of the Presiding Officer’s certificate.

2.3. Debates in Westminster

In designing the Presiding Officer’s role, Westminster was sensitive to both the powers of the Scottish Parliament and the role of a presiding officer/speaker in Westminster-style legislatures. It was ultimately decided that the Presiding Officer’s certificate should not bind Holyrood, and the current provisions are a compromise between the Commons and the Lords. As originally introduced, the Scotland Bill would have required Holyrood to vote on whether to proceed with a bill whenever the Presiding Officer gave a negative certificate. A simple majority of MSPs would have sufficed for the bill to proceed to the next reading.¹³ The Lords strongly objected to this provision because they feared it would undermine the authority of the Chair. Lord Erskine hypothesised that if such a vote were to pass, the Presiding Officer would be required to resign. He said amendment was needed, which would serve the purpose of

averting the humiliation and resignation of the presiding officer … The mere calling of such a vote will weaken his authority.¹⁴

Lord Renton described the procedures as ‘chaotic’¹⁵ and Lord Selkirk as ‘a basic instability in the Bill’.¹⁶ The Lords passed an amendment which would have made the Presiding Officer’s decision binding – if the Presiding Officer issued a negative certificate, then a bill could not proceed. The Commons rejected this amendment because it gave too much power to the Chair to decide complex devolution issues.¹⁷ The compromise they offered, agreed to by the Lords, was the current set of procedures. Here, the Presiding Officer simply gives a view on whether a bill is within competence, and the parliament is not forced to directly vote on whether to proceed in light of this view. The procedure therefore began its life as a certificate with a codified impact on the legislative process, however it was whittled down to a relatively soft check on devolved competence.

This exchange supposed that the Presiding Officer would have a similar relationship with the Scottish Parliament as the Speaker has with the Commons. We see how, from its inception, Holyrood was conceived as both an institutional break with the ‘archaic’ traditions of Westminster, but still somehow situated within a Westminster constitutional tradition. In debating the Presiding Officer’s role, Westminster envisaged the officeholder as a reflection of their Commons counterpart. It was argued in the Lords that, if the Presiding Officer’s certificate were to be debated, ‘the position of the presiding officer would be analogous to that of the Speaker of another place’.¹⁸ Even when it was acknowledged that the Presiding Officer’s functions went beyond those of the Commons Speaker, the Speaker was still the point of reference for a number of Lords contemplating the design of the certificate.¹⁹

3. Evolution versus devolution: EVEL and the speaker’s certificate

To understand why ‘humiliation and resignation’ could follow from the Presiding Officer’s certificate, we must understand the history of the Commons speakership and the conventions that inform British parliamentarisms (including in Scotland). The Commons speakership is a uniquely prestigious office and strict rules apply to votes that criticise the Speaker’s judgement and conduct. The expectations around the Presiding Officer’s certificate were shaped by understandings of this tradition. This section draws on the comparison of the Speaker’s certificate under the now-defunct English Votes for English Laws (EVEL) procedures. Here, the Speaker issued a certificate similar to that of the Presiding Officer, however with important differences. EVEL made it much more difficult to challenge the Speaker’s ruling, while nonetheless giving the Speaker’s certificate more practical weight than the Presiding Officer’s.

This article compares the Speaker’s EVEL certificate with the Presiding Officer’s for two reasons. Firstly, EVEL was an attempt to alter the House of Commons in response to devolution, particularly Scottish devolution (Reid & Welikala, 2023). It was an attempt to give constituents in England a devolved voice and veto within a unitary parliament. Therefore, devolution and EVEL were closely related developments. Secondly, and more importantly, both certificates represent an ex ante judgement on legislation and devolution frameworks by the legislatures’ chairs. The Speaker and the Presiding Officer were, in fact, charged with answering almost identical legal questions. As described below, EVEL decisions were based on devolution ‘constitutions’, particularly the Scotland Act 1998. Often, both the Speaker and the Presiding Officer had to form a view on exactly the same question: ‘is this legislation within the Scottish Parliament’s vires?’. The fact that the answer to this question triggered different procedures, and why, is what makes this comparison valuable.

Although the Speaker was required to issue a certificate based on an almost identical legal question (among others) to the Presiding Officer, the effect of this certificate was significantly different. Firstly, the Speaker’s certificate was final and could not be challenged in the House without major disruption to parliamentary business. As part of this, the Speaker’s certificate triggered distinct procedures in the Commons. Secondly, the Speaker’s certificate could not be challenged or overturned in any court. The first difference demonstrates the Presiding Officer’s certificate’s incompatibility with Westminster parliamentary culture, where the Speaker’s decisions cannot be called into question without using specific procedures and this may trigger the Speaker’s resignation. The second difference, that the certificate could not be challenged in court, emphasises the hierarchy of checks under the Scotland Act. The Speaker’s certificate could not be subject to such a hierarchy because of Westminster’s exclusive cognisance.

3.1. History of the speakership

The Commons speakership’s ancient history has endowed the office with a unique level of authority and prestige. Laundy, in his history of the speakership, states that:

Excepting only the Sovereign herself, no personage throughout the structure of British parliamentary government occupies a higher pinnacle of prestige than the Speaker of the House of Commons. He embodies in his own person the dignity of the nation’s representative assembly. The honour which is accorded his office is such as to sustain the authority of any incumbent, weak and strong alike (Laundy, 1964, p. 7).

Speakers are therefore awarded respect partly because their office symbolises the Commons and comes with enormous historical weight. Lord Rosebery believed that ‘all Speakers become good Speakers’.²⁰ Jennings makes a similar comment (Jennings, 1939, p. 65).

Like other rulings from the Chair, the only way to overturn the Speaker’s EVEL certificate was by a substantive motion. The explicit and sole purpose of such a motion had to be to challenge the Speaker’s decision, and Laundy describes this as ‘a grave step which no Member would dare to initiate frivolously’ (Laundy, 1964, p. 9). If such a motion were to have passed, a traditional interpretation of convention would require the Speaker to resign. However, more recent practice may have replaced this convention. Taken in conjuncture, paragraphs 20.10 and 20.23 of Erskine May require that decisions of the Speaker ‘cannot be debated except on a substantive motion which allows a distinct decision of the House’.²¹ For example, when Speaker Peel used the closure in 1885 and named a protesting MP, Thomas Sexton sought to display his displeasure with the Speaker’s decisions by weaving his criticism into a motion for adjournment. Speaker Peel refused the motion:

In common with all other Members of the House I have my rights, and my right is that if my conduct is impugned it should be impugned by a direct appeal to the House upon notice of motion, properly given, when a direct issue would be laid before the House, and an amendment be moved which shall test the judgment of the House (Laundy, 1964, p. 325).

Such motions have been used to challenge speakers’ actual decisions as well as their conduct in office more generally.²² Laundy argued in 1964 that if this type of motion were to carry, then the Speaker would have ‘no alternative but to resign’, and may even feel compelled to do so if it received a substantial minority’s support (Laundy, 1964, p. 102). This convention is also observed by commentators in other Westminster-style parliaments (Wijesekera, 2009, p. 5).

This convention may have softened over the years. In 1976, the government tabled a motion that aimed to avoid the Aircraft and Shipbuilding Industries Bill being classified as hybrid.²³ This was in response to a Speaker’s ruling that the bill was a ‘prima facie hybrid’. The government tabled a motion that the issue had been dispensed with, thus seeking to avoid the bill being referred for further examination because of the Speaker’s prima facie ruling. The motion did not, therefore, seek to overturn the Speaker’s ruling, but aimed to subvert the procedures which normally follow it. Nonetheless, Speaker Thomas recounts in his memoirs that officeholders would traditionally be tempted to resign if the motion passed (Thomas, 1985, p. 149). The motion did pass (by one vote after the breakdown of pairing arrangements) and Thomas did not resign.²⁴ Furthermore, the Opposition tabled an amendment which explicitly endorsed the Speaker’s ruling and proposed that normal procedures be followed.²⁵ The House divided evenly, and Thomas followed convention by voting for the status quo (thus voting against an amendment which included support for his judgement).²⁶ Therefore, perhaps speakers would not consider it a resigning matter if the House had ever overturned an EVEL certificate.

Modern speakers have also been more willing than their predecessors to take points of order which guise criticism of their judgements. Members may use points of order to ‘clarify’ a Speaker’s decision and the process the officeholder followed. An example is when Speaker Bercow made the contentious decision to allow the tabling of an amendment to a government motion which was to be put ‘forthwith’ (Caird, 2019). The Commons spent an hour making points of order on this decision.²⁷ The Leader of the House used the opportunity to ask whether the Speaker had followed clerks’ guidance and whether he would publish that advice.²⁸ One Member even suggested that Bercow might consider resigning his office.²⁹ Nonetheless, these are only mechanisms of criticism, not change. At most, they can only invite the Speaker to reconsider a ruling. Bercow himself commented: The clue is in the title, ‘The Speaker in the Chair’ … Mine is the responsibility.³⁰

This was the tradition that the Lords were drawing upon when they debated the Presiding Officer’s certificate. It was taken for granted that the Scottish Parliament would have a similar relationship with the Presiding Officer as the Commons has with the Speaker. This would mean only criticising the Presiding Officer’s judgement in accordance with strict rules of procedure.

3.2. EVEL certificate

The Speaker’s certificate under the now-defunct English Votes for English Laws procedures is an instructive comparison. While the certificate was similar to the Presiding Officer’s in many ways, it also had important differences that reflected the Commons’ concern over ex ante checks on devolution issues by the Speaker.

Under previous House of Commons Standing Orders, EVEL procedures applied to certain bills which related exclusively to England; England and Wales; and England, Wales, and Northern Ireland. Under certain circumstances, they gave a ‘double veto’ to representatives from those regions which were exclusively affected by a provision. Therefore, they were not simply ‘English’ procedures. The relevant group of MPs are referred in this article as ‘affected MPs’. The Speaker certified provisions of a bill under EVEL if they considered those provisions to meet a two-part test:

first, it applies exclusively to that part of the UK (excluding ‘minor or consequential’ effects); and second, that it would be within the power of at least one devolved assembly in a different part of the UK to make comparable provision (Gover & Kenny, 2016, p. 14).

The Speaker could take advice from numerous officeholders including Speaker’s Counsel. The government published its own view along with public bills, and this could help to inform the Speaker’s decision. Unlike the procedures of the Scottish Parliament, Speaker Bercow stated his willingness to take opinions from interested MPs as well.³¹ Also unlike the Scottish Parliament, where the Presiding Officer certifies a bill as a whole, the Speaker certified a bill in ‘units’. Certification was therefore normally provided to discrete clauses and schedules (Gover & Kenny, 2016, p. 14). Gover and Kenny note that the entire unit had to meet the two-part test for it to be certified under EVEL (Gover & Kenny, 2016, p. 14). Therefore, unlike the Presiding Officer’s certificate, which may be positive or negative, the Speaker broke a bill down into units and a certificate was applied to only those units which met the two-part test.

Whereas the Presiding Officer’s certificate does not normally trigger distinct procedures in the Scottish Parliament (the exception being Members’ bills), the Speaker’s certificate altered the course that provisions would take if they were to be passed by the Commons. This was a consequence of the Speaker’s authority, which should only be called into question on a substantive motion. Certified provisions were subject to a ‘double veto’ by affected MPs. Without going into a full analysis of the EVEL procedures, affected MPs were given the power to veto those provisions which had been certified under EVEL. For provisions of the original bill or Commons amendments introduced before it was first passed to the Lords (that is, at the report stage), affected MPs’ consent had to be withheld twice for those provisions to be deleted on affected MPs’ votes only. Affected MPs were represented by a Legislative Grand Committee consisting of only English MPs (plus Welsh and Northern Irish, as appropriate) (Gover & Kenny, 2016, pp. 14–6). If the entire bill related only to England, then at the committee stage it would be considered by a committee comprised only of English MPs (Gover & Kenny, 2016, p. 16). During Commons Consideration of Lords Amendments, affected MPs were also given a veto mechanism for certified provisions. A bill could therefore be passed back to the Lords, or Lords amendments deleted, if affected MPs withheld consent (Gover & Kenny, 2016, p. 16). In short, EVEL certification had a material impact on the legislative process in the Commons. Unlike the Presiding Officer’s certificate, it triggered a special legislative process. This is because, as discussed above, the Speaker’s judgement should not be indirectly called into question. Because the Speaker was being asked to make an informed view on the nature of a given bill, this had to have a concrete effect whereby this view could not be indirectly called into question in later debate. As seen in the next section, this is exactly what happened to the Presiding Officer during the passage of the EU (Continuity) Bill. The concrete effect of the Speaker’s certificate was designed to avoid this in the Commons. The certificate and its effect could only be challenged by a substantive motion.

A further distinction between the Speaker’s EVEL certificate and the Presiding Officer’s is that EVEL was not subject to judicial review. This emphasises the hierarchy of checks under the Scotland Act. The decision to avoid judicial review was clear from the Commons debates. This was shaped by the Commons’ historical aversion to interference with its powers, particularly the principle of exclusive cognisance. EVEL was introduced under Standing Orders to minimise the chance of judicial review. Chris Grayling, the Leader of the House who piloted the proposals, admitted

I am reticent about using legislation … There is a strong feeling in the House that using legislation to govern our legislative process would risk opening it up to legal challenge and that ultimate authority may pass from you, Mr Speaker, to the courts. We therefore have to be immensely careful.³²

Some prominent commentators argued that EVEL created the opportunity for judicial review of either the Speaker’s certificate or legislation subsequently passed under it. Such an outcome would have been against the Commons’ intentions when designing EVEL. During a House of Lords debate on the procedures, Lord Hope commented that government would ‘step outside the established procedures for legislation […] at their peril’.³³ Similarly, Lord Lisvane observed ‘a possible hazard to Article 9 of the Bill of Rights’.³⁴ Finally, Bogdanor has argued that the role of the Speaker under EVEL was different to that under the Parliament Act. What is a money bill ‘is a judgement that a non-lawyer is equipped to make’, however EVEL was one of law (Bogdanor, 2015, pp. 23–4). Therefore, although EVEL could perhaps have opened the door to judicial review in practice, the Commons clearly intended to make the Speaker the final arbiter of devolution issues as they applied to EVEL. This stands in contrast with the Presiding Officer’s position at the bottom of a hierarchy of checks.

EVEL gives us the opportunity to see how the Commons designed a devolution certificate for their own presiding officer. It took on a very different character to that designed for the Scottish Parliament. The Presiding Officer’s position at the bottom of the hierarchy reflected the position of the Scottish Parliament, which is bound by legislation and subject to judicial supremacy/oversight. The Speaker’s certificate reflected the Commons’ exclusive cognisance and was therefore not subject to judicial review. Naturally, the position of the chairs within the institutional hierarchy reflected the position of their legislatures.

The Speaker’s certificate was also different to the Presiding Officer’s in its effect on the legislative process. While a negative certificate from the Presiding Officer may be debated and indirectly rejected by the Parliament, the Speaker’s EVEL certificate triggered distinct legislative procedures and was not designed to be debated or called into question. By appreciating the history of the speakership, we can see why EVEL took on these distinctive characteristics.

4. The Presiding Officer under pressure

During the passage of the EU Continuity Bill, the extent to which MSPs understood the Presiding Officer’s role through the prism of Westminster parliamentary culture became clear.

The EU Continuity Bill received first reading on 7 March 2018. The bill aimed to respond to the predicted effects of the European Union (Withdrawal) Act 2018. That act was designed to ‘repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU’.³⁵ It gives continuing effect to EU law as it applies to the UK by adopting it into domestic law (Elliott & Tierney, 2019). The Scottish Parliament withheld its consent to this act and, working on the assumption that it would be amended to accommodate Holyrood’s position during passage, it passed the EU Continuity Bill. The EU Continuity Bill aimed to maintain the effect of EU law so far as it applied to devolved matters and to give Scottish ministers consequential powers.

The EU Continuity Bill was a first for the Scottish Parliament in two aspects of pre-enactment review. It was the first government bill to be introduced with a negative certificate and it was the first bill to be referred to the Supreme Court (that is, referred at the pre-enactment stage). The Supreme Court ultimately found that the EU Withdrawal Bill had been broadly within Holyrood’s competence at the time of passage, however the subsequent passage of the UK Withdrawal Act (which is protected under Schedule 4 of the Scotland Act) had brought large portions of it outside competence.³⁶ There has already been writing on the legal intricacies and importance of the court’s judgment (McHarg & McCorkindale, 2019; Tierney, 2019, pp. 75–6). This article searches for the lessons that this discrete but important case presents for the role of the Presiding Officer and Holyrood’s parliamentary culture. The Presiding Officer’s authority was damaged by the Scottish Parliament proceeding with a bill under a negative certificate, or at very least parliamentarians were put in an awkward position. This is because the Presiding Officer is seen as Holyrood’s Speaker, still embedded in the Westminster tradition.

When the Scottish Government, the Presiding Officer, and the Law Officers disagreed on the proper interpretation of the Scotland Act, each performed their duties and exercised their powers as provided by the act. The Presiding Officer’s certificate read:

My statement sits alongside the statement on the same issue from the Member introducing the Bill required by section 31(1) … [the purpose of the certificate] is to provide an opportunity to make Members of the Parliament aware of any significant concerns which I may have as to the legal validity of the Bill or legal risks that it may present … [the certificate is not] intended to be a veto.³⁷

This is a fair account of the purpose and legal effect of the Presiding Officer’s statement and it is interesting that the Presiding Officer suggests parity between his certificate and the minister’s statement. The Presiding Officer’s certificate went on to read:

The issuing of my statement on competence fulfils my statutory duty to inform Parliament. From that point on, the exercise of legislative authority and consideration of any issues relevant to that, rests with the Parliament.³⁸

This is a very literal reading of the Presiding Officer’s duty under the Scotland Act, and perhaps seeks to avoid the appearance of conflict between the Chair and Parliament. The Scottish Government also took the unprecedented step of bringing in the Lord Advocate to make a statement on why, in his view, the bill was competent. This may have been to assuage the worries of those MSPs who were uncomfortable proceeding with a bill under a negative certificate.³⁹

The passage of the EU Continuity Bill caused damage to the Presiding Officer’s authority and discomfort for all those involved. There was conflict between the structure of Holyrood (the certificate) and the culture of Holyrood (respect for the Presiding Officer based on that for the Commons’ Speaker). As mentioned above, Presiding Officer Macintosh emphasised the non-binding nature of the certificate and was perhaps eager to separate the bill from his own authority. However, issues over MSPs’ duties to the Presiding Officer were still raised in debate. Maurice Golden (Conservative) claimed that the Scottish National Party wanted to ‘ride roughshod over the Presiding Officer’⁴⁰ and Neil Bibby (Labour) said it was ‘uncomfortable’ for Parliament to disagree with the Chair.⁴¹ Donald Cameron (Conservative) went further and explicitly linked Parliament’s treatment of the Presiding Officer’s statement to its treatment of the office, rather than simply the merits of legal argument.⁴² This sentiment was echoed by Mike Rumbles (Liberal Democrat), who called for MSPs to reject the bill out of respect for the Presiding Officer’s ruling.⁴³

After the bill was held ultra vires by the UKSC, there were further awkward moments for the Presiding Officer. The BBC reported that the Lord Advocate ‘defended’ the Chair after Clare Adamson (SNP) asked a question which aimed to emphasise that the UKSC had disagreed with the Presiding Officer’s judgement.⁴⁴ Jamie Greene (Conservative) claimed that the Court’s decision served to ‘vindicate’ the Chair’s analysis to cries of ‘no it doesn’t’ from some of those who supported the bill (Ministerial Statement: The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, 2018). Ultimately, support for the Presiding Officer or the Lord Advocate divided along party lines.⁴⁵

MSPs without legal expertise were unsure of how to weigh the Presiding Officer’s statement against that of the Lord Advocate. James Kelly (Labour) observed that Holyrood was in ‘difficult and uncharted territory’ and that MSPs had picked legal advice which suited their political position.⁴⁶ Bruce Crawford (SNP) acknowledged that the intricacies of the legal disagreement were beyond most MSPs’ ken and they should therefore pick who they ‘chose to believe’:

I choose to agree with the position of the Lord Advocate, who is Scotland’s top law officer. I use the word ‘choose’ deliberately, because the matter is about who we are as parliamentarians and what we choose to believe … there is space for disagreement on the matter. It is therefore not as simple as asking who is right and who is wrong.⁴⁷

This seems to tie MSPs’ choice to their view of the officeholders concerned and their trust in the officeholders’ legal expertise. This position was perhaps supported by John Swinney (SNP), who drew attention to the Lord Advocate’s status as ‘Scotland’s principal law officer’.⁴⁸ There was also discussion on the quality and content of the Presiding Officer’s statement. McCorkindale and McHarg were positive about its effect (McCorkindale & McHarg, 2018), while Page felt it was ‘unsatisfactory’ and lacked depth (Finance and Constitution Committee, UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill Stage 1 Transcript, 2018). Some MSPs also called for the Presiding Officer to publish the legal advice he had received.⁴⁹

As demonstrated by the parliamentary debates above, the conflict between the legal opinions of the Scottish Government and the Presiding Officer adversely affected the authority of the Chair and put parliamentarians in an awkward position. MSPs were asked by the government to disagree with the Chair’s informed legal opinion. Some lay Members seem to have chosen the legal interpretation which suited their political aims and others sided with who they considered to be the more authoritative officeholder – the Lord Advocate or the Presiding Officer.

The direct focus on the Presiding Officer in this case also shows that the pressure on the officeholder is greater when Parliament chooses to press on despite a negative certificate compared to when the judiciary finds an ASP or bill to be ultra vires despite a positive certificate. Although the judiciary had already considered the status of a positive certificate from the Presiding Officer in cases such as Imperial Tobacco (mentioned above), subsequent political debates tend to focus on the Scottish Government rather than the Presiding Officer. This in itself may also be evidence of the Scottish Parliament’s deference towards the officeholder.

The unprecedented decision of multiple MSPs to openly challenge and criticise the legal view of the Presiding Officer is evidence that this episode put the officeholder in an uncomfortable position. It may further be inferred from these debates that, at least temporarily, the status of the Chair was undermined. It is more difficult to gauge what lasting impact this episode might have had on Presiding Officers’ behaviour. Lingering questions include whether this will make subsequent Presiding Officers less likely to issue a negative certificate, or subsequent governments more likely to continue with a bill despite a negative certificate. Given that the Presiding Officer’s duty is statutory, and that this episode happened in an extraordinary constitutional context, both of these possibilities are perhaps unlikely. Despite this, any future disagreement over a negative certificate is likely to cause similar discomfort for the Presiding Officer. Inevitably, opposition MSPs will invoke the authority of the Chair again and they will be forced to choose between this and the Lord Advocate’s view. The EU Continuity Bill and episode will be a point of reference.

5. Discussion: Scottish parliamentarism

The EU Continuity Bill and the Presiding Officer’s certificate show us how political culture informs parliamentarians’ approach to Scottish institutions. This is an example of how culture and context shape the ways in which we view institutions and their officeholders. When parliamentarians in Westminster (designing the Scotland Act) and Holyrood (operating under the Scotland Act) looked at the Presiding Officer, they saw the office through a shared heritage of the Commons speakership. While the institutional role is similar to others in Nordic parliaments, the constitutional reference point was inevitably the UK Parliament. This is something similar to the social union, spoken of by unionist and nationalist politicians alike (Tickell, 2012). When Scots talk about ministerial responsibility, First Minister’s Questions, and any number of other features at Holyrood, they are thinking as part of this living constitutional family – not of the Finnish Eduskunta or Swedish Riksdag. This is also a constantly evolving tradition, where the politicians themselves move between the different parliaments (in both the Lords and Commons as well as the Scottish Parliament) and are influenced by events across the UK. When the Commission on Parliamentary Reform investigated the role of other presiding officers in 2017, their comparisons were, naturally, the Dáil Éireann and the House of Commons (Your Parliament, Your Voice, 2017, para. 116).

This discussion gives us cause to consider the mixed nature of ‘Scottish parliamentarism’. Devolution was shaped by the context of ‘New Politics’. New Politics refers to the hope that devolution would represent not just more power for Scotland, but also a new way for that power to be exercised. It was an omnipresent, though seldom fully described, ideal throughout devolution’s origins (Henderson, 2005, p. 277). Particularly, the Consultative Steering Group wanted ‘to break the confrontational mould that dominated proceedings at Westminster’ (Reflections on 20 Years of the Scottish Parliament, 2019, para. 8). The Scottish Parliament was designed to imitate the workings of European, particularly Nordic, legislatures. These parliaments are renowned for their cross-party, cooperative culture. Scrutiny is known for bring respectful and technical as opposed to Westminster’s ‘yah-boo’ politics (Malley, 2012, p. 715). Many Scots hoped that these design features would generate more of a ‘bargaining democracy’ based on party cooperation in a parliamentary system (Arter, 2003). Adversarialism was out, hygge-politics was in. The Consultative Steering Group looked closely at Nordic legislatures for institutional design ideas (Arter, 2003, p. 6). However, through usage, MSPs are re-purposing these design choices into something new. Though institutional practice is often rooted in the Westminster tradition, which Scots have helped to form and have also been steeped in over centuries.

By charting the conception, amendment, and effects of a simple procedure like the Presiding Officer’s certificate, we are confronted with a long historical story and Scottish political culture. The story involves comparative enquiries and institutional borrowing, but it is also context-specific. It is also a warning, whereby there may be a mismatch between Scotland’s institutions and its parliamentary culture. As Scotland comes to terms with this culture, it may choose to shape the laws and other instruments governing the Scottish Parliament in a way that is more compatible with Scottish politics. This will involve cementing some of the New Politics institutional designs while replacing others. This requires reflexivity between political reality and institutional aspirations.

6. Conclusion

The Presiding Officer’s certificate is an example of the juxtaposition between Scottish parliamentary culture and the ambitious, sometimes quixotic, foundations of devolution. On one hand, there is a procedure that would have been considered inappropriate for Westminster (specifically the Commons). This is seen in the alternative design choices associated with EVEL. In the Scottish Parliament, the Presiding Officer may issue an official opinion against legislation that the government nonetheless supports. It is then for parliamentarians to decide whether to support the bill. These procedures were seen as an appropriate vires safeguard in a parliament that, anyway, was never meant to be a Westminster-on-the-Forth. On the other hand, many parliamentarians passing the Scotland Act were well aware that political culture is not broken so easily. When the procedures came under strain in the Scottish Parliament, it was Westminster parliamentary heritage that they were in conflict with. As devolution develops, the idea of Scottish parliamentarism, especially how it converges and diverges with British parliamentarism, may become a national policy and research concern.

Acknowledgement

I would like to thank Professor Stephen Tierney and my reviewers for their very useful comments on this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Peter Reid

Peter Reid is a PhD Candidate at the University of Edinburgh and a member of the Edinburgh Centre for Constitutional Law. His thesis explores hybrid Westminster model constitutions in Sri Lanka and Guyana.

Notes

1 Government of Wales Act 2006, s. 97(3) and Northern Ireland Act 1998, s. 10. Ex ante checks on vires are also distinct in all three devolved legislatures, however. In Wales, reasons are sometimes given for a positive certificate that reveal doubts in the decision. More significantly, in Northern Ireland the Presiding Officer has a veto at multiple stages of the legislative process. The Secretary of State also plays a more prominent role in Northern Ireland (see, for example, s. 10(2)(c) of the Northern Ireland Act 1998). Scotland’s Presiding Officer’s role in relation to vires may further be contrasted with the officeholder’s role in relation to ‘protected subject-matter’ (whereby a Bill requires a two-thirds majority to be passed under s. 31A). Here, the Presiding Officer issues a second certificate after the last time when a Bill may be amended but before the decision on whether to pass or reject it (s. 31(2A)). Legislative Consent Memorandums (where Westminster seeks the Scottish Parliament’s consent when it makes laws on devolved matters, legislative competence, or executive competence) are normally passed to the ‘lead committee’ under Chapter 9B of the Scottish Parliament’s Standing Orders.

2 While, practically, this will still be the case for most legislation, the Lord Advocate’s reference on holding an independence referendum shows that, in some circumstances, hypothetical legislation may be considered where there is no Bill. Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31.

3 The Riksdag Act (2014:801), Chapter 11, Article 7.

4 Constitution of Finland (713/1999), s. 42.

5 The Danish Parliament Standing Orders, Chapter 5, s. 16(3).

6 Constitution of France 1958, Article 61.

7 Constitution of Ireland 1937, Article 31(2)(i).

8 Rule 9.14.18(b).

9 Official Report, Local Government and Transport Committee (24 Oct 2006) 4164.

10 Official Report, Justice 2 Committee (28 Nov 2006) 3043.

11 Lord Hope in A v The Scottish Ministers [2002] S.C. (P.C.) 63, at pp. 66-67.

12 Imperial Tobacco Limited v The Lord Advocate as Representing the Scottish Ministers [2012] CSIH 9 at para 59.

13 The Scotland Bill, as presented to the House of Commons on 17 December 1997. S. 31. https://publications.parliament.uk/pa/cm199798/cmbills/104/1997104.htm (accessed 21 August 2020).

14 HL Deb, 28 July 1998, Vol. 592, Col. 1368.

15 HL Deb, 28 July 1998, Vol. 592, Col. 1369.

16 HL Deb, 28 July 1998, Vol. 592, Col. 1371.

17 HL Deb, 17 November 1998, Vol. 594, Col. 1172.

18 HL Deb, 28 July 1998, Vol. 592, Col. 1369.

19 HL Deb, 28 July 1998, Vol. 592, Col. 1369. Note, however, Lord Desai calling for a more open comparative approach HL Deb, 28 July 1998, Vol. 592, Col. 1371.

20 Quoting Lord Rosebery, (Austen, 1960, p. 51)

21 Erskine May Online, paragraph 20.10 (accessed 24 July 2020).

22 HC Deb, 22 April 1814, Vol. 27, Cols. 465-522.

23 HC Deb, 27 May 1976, Vol. 912, Col. 632.

24 HC Deb, 27 May 1976, Vol. 912, Col. 762; see also (Laban, 2013, pp. 138–9)

25 HC Deb, 27 May 1976, Vol. 912, Col. 632.

26 HC Deb, 27 May 1976, Vol. 912, Col. 757.

27 HL Deb, 9 January 2019, Vol. 652, Cols. 365-382.

28 HL Deb, 9 January 2019, Vol. 652, Col. 370-371.

29 HL Deb, 9 January 2019, Vol. 652, Col. 379.

30 HL Deb, 9 January 2019, Vol. 652, Col. 376.

31 HC Deb, 13 January 2016, Vol. 604, Col. 861.

32 HC Deb, 7 July 2015, Vol. 598, Col. 197.

33 HL Deb, 21 October 2015, Vol. 765, Col. 762.

34 HL Deb, 16 July 2015, Vol. 764, Col. 759.

35 European Union (Withdrawal) Act 2018, Introduction.

36 The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland (Scotland) [2018] UKSC 64. Paragraphs 98-124.

37 UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, accompanying documents, ‘Statements on Legislative Competence’. 2-3.

38 UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, accompanying documents, ‘Statements on Legislative Competence’. 3.

39 Official Report (28 February 2018) 19-30.

40 Official Report (7 March 2018) 54.

41 Official Report (7 March 2018) 64.

42 Official Report (7 March 2018) 74.

43 Official Report (21 March 2018) 170-171.

44 Official Report (13 December 2018) 54; (BBC News, 2018)

45 The Supreme Court found that the bill had largely been within legislative competence at the time of introduction, however the subsequent passage of the European Union (Withdrawal) Act 2018 in Westminster, and its modification of the Scotland Act 1998, had brought most of the bill outside legislative competence (EU Continuity Bill Reference at paragraph 125(v)). Although the Presiding Officer’s view was far from outlandish (given the untested nature of the issue), nonetheless the Scottish Government’s view at the time of the bill’s introduction proved to be the correct one. The disagreement over how to interpret the Scotland Act 1998 when the EU Continuity Bill was introduced, and the effects of the court’s judgment in rendering most of the bill ultra vires, perhaps indicates why this was the first government bill to be introduced with a negative certificate. The legal ground was untested and open to reasonable disagreement. It happened that the Presiding Officer and Scottish Government took different views. Furthermore, this disagreement was so central to the legislation’s purpose (the Scottish administration taking responsibility for former EU law) that the bill was meaningless unless the Scottish Government’s view was the right one. McCorkindale and Hiebert paint a picture of give-and-take between the Presiding Officer’s team and the government (McCorkindale & Hiebert, 2017, pp. 333–8). This is perhaps only possible where the Presiding Officer does not find the policy itself to be inherently beyond the Parliament’s competence.

46 Official Report (7 March 2018) 71.

47 Official Report (7 March 2018) 40.

48 Official Report (21 March 2018) 158.

49 Official Report (7 March 2018) 50, 64, 72.