The Scottish Parliament: a font of bad laws

Guest post from Rob Lyons

The controversy over the Scottish Government’s Gender Recognition Reform Bill – passed by the parliament in Holyrood, but subject to an unprecedented veto by the UK government under section 35 of the Scotland Act 1998 – has mostly focused on the problems the bill raises with safeguarding the rights of women and children. Those issues were brought into stark relief this week by the case of Adam Graham, a double rapist who now wishes to be known as Isla Bryson. Graham was initially housed in a women’s prison until an outcry forced Scotland’s first minister, Nicola Sturgeon, to intervene.

But another problem highlighted is the SNP’s woeful record (with the help of other parties at Holyrood) in creating bad laws that end up being repealed or never get implemented because of the problems they create. Six laws demonstrate the SNP’s clumsy approach to legislation. But that should not let other parties off the hook: most of these laws had the support of most of the other big parties at Holyrood, particularly Labour, the Lib Dems and the Greens. The Scottish Parliament is proving to be a reliable generator of stupid, authoritarian laws.

1 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012
After some disturbing incidents in and around football matches, the SNP pushed through this knee-jerk act, which included a free-standing ‘stirring up religious hatred’ offence. A year after its introduction, a Dundee sheriff – acquitting a Celtic supporter who had been charged over singing pro-IRA songs at a football match – said the laws were ‘badly drafted’ and ‘mince’. Under the terms of the new laws, he said, there might even be a problem with those who attend Murrayfield and sing ‘Flower of Scotland’. The Law Society, among other groups, said much of the Act was covered by other law anyway.

In 2018, the law was repealed by 62 votes to 60 after all the opposition parties voted against the Scottish government.

2 Children and Young People (Scotland) Act 2014
A central aim of this bill was to provide a state employee - a ‘named person’ - responsible for the welfare of each and every child in Scotland. A key feature was sweeping powers to share – without consent – private and personal information about children and their families with other agencies. Again, the proposed law was deeply unpopular. The bill passed in February 2014 by 103 votes to 0 at the final stage. Conservative MSPs abstained, but all the other parties supported it.

Unfortunately for the Scottish government, those information-sharing provisions were unanimously struck down in 2016 by the UK Supreme Court as being incompatible with Article 8 of the European Convention on Human Rights. Therefore, these provisions were not within the competence of the Scottish Parliament and were consequently ‘not law’. The Scottish government claimed the ruling was not a defeat and the legislation would merely need to be tweaked. But the remedial bill was eventually withdrawn in 2019 and the ‘named person’ scheme was never introduced.

3 Hate Crime and Public Order (Scotland) Act 2021
This was a Scottish government bill to update and expand hate-crime law in Scotland. It became deeply controversial with the public. During the passage of the bill, the Scottish Police Federation warned it would significantly increase the police’s workload and damage freedom of speech. It said it would result in ‘officers policing speech and would devastate the legitimacy of the police in the eyes of the public’. The Law Society pointed out the ‘lack of clarity’ in the bill which ‘could threaten freedom of expression’.

The bill was one of the most heavily amended in Scottish Parliament history, after the Scottish government was forced into a series of climbdowns. One of the most egregious aspects of the bill is the removal of the ‘dwelling defence’. If a comment is regarded as ‘hate speech’, the fact that it took place in a private conversation at home would no longer be a defence. Despite the flaws, the bill passed its final stage in March 2021 by 82 votes to 32 (largely Conservatives) with four abstentions. Yet it has still not come into force because of the additional burden it would place on the police – and some speculate the law will never come into force.

4 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill
This was a Scottish government bill to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into the law in Scotland. The bill passed its final stage on 16 March 2021 by 114 votes to 0.

However, the UK government referred the bill to the Supreme Court in April 2021 under section 33 of the Scotland Act, over whether four of its provisions were within the Scottish Parliament’s legislative competence. The Supreme Court ruled unanimously in October 2021 that they were not. The Scottish Parliament has still not amended the bill and, as yet, it has not become law.

5 European Charter of Local Self-Government (Incorporation) (Scotland) Bill

This is a member’s bill introduced by Andy Wightman, who left the Scottish Greens and sat as an independent, to incorporate the European Charter of Local Self-Government into Scots law. The bill was passed at its final stage on 23 March 2021 by 114 votes to 0.

Again, the UK government referred the bill to the Supreme Court in April 2021 under section 33 of the Scotland Act 1998, over whether two of its provisions were within the Scottish Parliament’s legislative competence. The Supreme Court ruled unanimously in October 2021 (in the same judgment that dealt with the UNCRC Incorporation Bill) that they were not. The Scottish Parliament has still not amended the bill to comply with the judgment, so it cannot become law.

6 Gender Recognition Reform (Scotland) Bill

A Scottish Government bill to amend the Gender Recognition Act 2004 to make it quicker and easier to obtain a gender recognition certificate (GRC) – in other words, to change legal sex. The bill removes the requirement for a medical diagnosis and reduces the period for which an applicant for a GRC must live as the opposite sex from two years to three months. The minimum age of an applicant would also be reduced from 18 to 16, although the waiting period is longer (six months) for under-18s.

During the passage of the bill, the Equality and Human Rights Commission repeatedly raised the cross-border implications – including the operation of the Equality Act 2010 – in correspondence to the Scottish and UK governments and MSPs. The Scottish government insisted that the bill did not make any change to the Equality Act.

The result was an order issued by the UK government under section 35 of the Scotland Act preventing the bill from being sent for royal assent, on the basis that it has implications for reserved matters such as the Equality Act 2010. Lord Hope of Craighead, former deputy president of the final court of appeal, said the Scottish government’s chances of winning a legal challenge against the order were ‘very low’.

And that’s just the ones that were so bad they have been repealed or cannot be implemented

The Scottish Parliament has plenty of form for illiberal legislation that has been passed and has stayed on the statute books. For example, Scotland was ahead of the game in 2006 in banning smoking in public places. Scots have to tolerate a minimum unit price for alcohol, passed in 2012 but only implemented in 2018 after years of legal challenges. The law was supposed to deal with Scotland’s problem with alcohol-related mortality, but while it has cost consumers millions of pounds, it has done nothing little or nothing to stop people from drinking themselves to death.

Many of these laws are unpopular, but reflect the obsessions of the political classes and the NGOs that lobby them. The Scottish Parliament may have brought power geographically closer to the people, but politicians in Edinburgh are every bit as out of touch as their counterparts in Westminster.

This article draws on a briefing prepared by the Christian Institute.