“Holyrood ‘has harmed’ Scots law”. That, at least, is what a BBC headline proclaimed in its report of comments by a well known, respected and livewire Scots legal commentator Alastair Bonnington. His initial comments in the Times (presumably available behind a paywall) spun out into a radio appearance on Good Morning Scotland and coverage in the Law Society of Scotland’s professional journal’s website , plus it spiralled into a Twitter spat between former advocate Roseanna Cunningham MSP and current QC Brian McConnachie that was picked up in The Scotsman. The former BBC Scotland legal bod certainly filled a few column inches and made for some interesting radio and TV coverage with his views.
If that comes across as me playing the man not the ball, that is not quite what I mean to do. As the Twitter account of @bbcgms put to me, his previous employment does not necessarily diminish his views, and it should be noted he is a former honorary professor at Glasgow University professor and a solicitor advocate to boot. It might also be noted, as highlighted by Lallands Peat Worrier, that he may have undermined his broadside a little by previously criticising Holyrood’s decision not to legislate in one context (the law of defamation). Be that as it may, has the Scottish Parliament harmed Scots law?
Taking that BBC headline as a starting point, it might be prudent to define what “harm” to a legal system is. I would volunteer two meanings. I suppose it might mean harming the sentient beings that a legal system serves, rather than harming the societal framework that is the law which exists and, in so doing, reflects and shapes the society that it regulates. A legal system is no more harmed by a piece of legislation than a climate is harmed by a rainy day.
Having already made a seafaring analogy by referring to a broadside, I offer more nautical imagery. Legal systems are like boats. They bob up and down on an ocean of challenges with legislators constantly plugging holes or baling out water to keep the ship afloat and on course as and when a new broadside comes along or waters get a little choppy. That leads on my second supposition of what “harm” might mean. Could it mean a situation when a legal system simply ceases to be, because the ship sinks or is commandeered by another crew? Not even the 1707 Union of Parliaments holed the Scottish legal system beneath the waterline, so clearly that meaning cannot apply to Holyrood. How then might my analogy apply to the devolved Scottish legislature?
The renowned Highland historian Jim Hunter begins his book The Last of The Free with an insight from a Sutherland crofter, who surprises the reader at the outset with his view that Scottish devolution was not something to look forward to. The gist of his remarks were that in London they did not generally care about Sutherland, whereas in Edinburgh they meddled. Sure, there may have been times where Westminster’s benign inaction was not in fact benign (think 19th century Highland famine), but at least they only interfered where absolutely necessary (compare Westminster’s crofting reforms with Holyrood’s myriad tinkering), or so the argument goes.
So politicians legislate on topical matters. This is a bit of a “dog bites man” obvious statement to make. They might jump on a zeitgeist, be that minimum pricing for alcohol or laws to combat sectarianism in fitba, or they might even make a zeitgeist, perhaps by enacting legislation about breastfeeding that might not have been needed anyway (but see my further comment asterisked below) or whatever else. In the context of Scots criminal law, we have seen reforms to “double jeopardy” (think World’s End murder trial) and may well see reforms regarding corroboration that may, but more likely may not, be tied to other reforms such as adverse inference provisions where an accused person remains silent (triggered, rightly or wrongly, by the now infamous case of Cadder v HM Advocate, as detailed in the preamble to the Carloway Review). They seek to satisfy voters by solving problems, real or invented, to set them apart from the other mob. Welcome to democracy. Where is the “harm”?
Westminster has also dealt with topical challenges in its recent and not-so-recent history. A former lecturer at Strathclyde had a bee in her bonnet about the fact Westminster got a bee in its bonnet and passed the Dangerous Dogs Act 1991, but that does not imply Westminster was harming a legal system by legislating. (I suspect my former lecturer found another insect in her hat when Christine Graham fronted a successful campaign to tighten up the Scottish rules for canines – this is an aside I shall pursue no further.) To look further back, did it harm Scots law when Westminster enacted anti-Jacobite measures after the failed rebellions? Feudal tenure involving an obligation to bear arms and a form of local clan jurisdiction were certainly traditional, but they had to go. Again, where is the “harm”?
Granted, I have been a little cursory in my legislative review and none of these are precise analogies. Further, 18th century Scotland was a different place and, pre-Representation of the People reforms, perhaps not as concerned with votes, but hopefully the point is clear enough. Every democratic legislature can be expected to legislate, whilst society can be expected (nay, encouraged) to respond to reforms it finds unpalatable. What makes the Scottish Parliament so unique?
Here is the nub. This is where I start sounding like either: (a) a nationalist; or (b) Tam Dalyell. Scotland’s “boat” is now predominantly controlled by Holyrood, but Holyrood cannot re-align the foreign policy rudder or tinker too much with the constitutional engine room. What it might do is make certain provision for healthcare and education for those on board, render the boat’s branding bilingual or trilingual with English, Gaelic and Scots all featuring, or it might amend the planning rules about how high the funnels can be. It might also amend civil law and justice (subject to human rights and other European law constraints). If we should not be surprised that politicians legislate, should we be in any way surprised that a politician with a restricted remit might feel forced to keep foutering within that remit?
A friend and former colleague of mine once took great delight in explaining why he had voted “No/Yes” in the 1997 referendum on devolution. Whilst he did not necessarily want another layer of legislators, if he got them he wanted them to be as powerful as possible. I think I can see what he was thinking. To say the Parliament created after that referendum has “harmed” Scots law, without recognising political realities and the tools Holyrood has, is a tad simplistic. Clearly there is much politicking to be had as issues fall between cracks and/or get kicked between legislatures, and the scheduling of legislative amendments at Holyrood leaves much to be desired on occasion, but might it be that at least some of the harm has as much to do with the settlement that was created in 1998 as opposed to the composition of the chamber?
Three further quick points are offered, which may serve as ready-made counter arguments for any hecklers but will hopefully show complete(ish) coverage on my part. A first point to note for completeness is that a Scottish Parliament Committee gently chastised the Justice Minister for not taking forward Scottish Law Commission reforms in relation to certain areas of Scots private law, but then again maybe these issues are not seen to be key at the ballot box. There might also be a “brain drain” argument to make, in that some of Scotland’s best political minds (whatever that might mean) still head to Westminster rather than Holyrood, but I am not sure there is anything in that worth pursuing and (to the extent it is relevant) legally qualified MSPs sit in parties of various colour at Holyrood and therefore harming Scots law is (hopefully) not what they want to do. Finally, Holyrood’s unicameral status (i.e. no second chamber) is worthy of acknowledgement, but I shall do no more than that.
So has Holyrood “harmed” Scots law? Maybe it has, and if it has maybe whichever party was in power at the time was engaged in some long-term electioneering within the terms of reference available. Are we not grown-up enough to deal with that? Bonnington is right, and has the right, to voice criticisms about any reforms to Scots law that concern him, but to say such reforms are “harming” Scots law might shift the focus away from his actual concerns.
Then again, I have just blogged all about his concerns. What a cunning soul he is…
Post scriptum – the analogy of a legal system as a boat is taken from George Gretton and Andrew Steven’s excellent student text Property, Trusts and Succession. I have no idea if they salvaged it from elsewhere.
*UPDATE *- My ancillary point about breastfeeding above very quickly developed into a Twitter debate with @mikedailly and @mcin321 about the merit of the Breastfeeding etc. (Scotland) Act 2005, which I do not want to skew perceptions of the blog or indeed me. Perhaps I could have chosen an easier target as to legislation of little merit, and whilst my initial question of whether there had been any pre-legislation convictions for breastfeeding might still be answered in the negative the Scottish Parliament received representations that harassment had taken place of mothers breastfeeding (thanks to Mike for linking to it) and thus the legislation was of some utility. I am happy to offer this more temperate and lengthier analysis of the legislation. I could have removed the reference to the legislation entirely to redact the blog, but I thought that might: (a) be bad internet form; and (b) remove a salient lesson for others who happen to stumble across this blog in future. I sincerely hope no-one is offended by anything I wrote and that this clarification serves to resolve any concerns and (most importantly) return the blog to what its focus should be.