The Scottish Parliament Has Not Damaged Scots Law (Revised)

By Alan McIntosh

Professor Alistair Bonnington’s statement that the Scottish Parliament has damaged Scots Law does not come as a surprise: there is plenty who take the view that our MSP’s are not up for the job. They have been accused of not understanding the issues they legislate on,  populism and being vulnerable to the occasional knee jerk reaction.

This image has not also been aided by scenes of ill-advised legislation that have being pushed through parliament during moments of panic. That happened in the immediate aftermath of Cadder v HMA and you got a feeling of how the Enabling Act of Germany could happen.

But in weighing up the comments of Alistair Bonnington it’s important to bear in mind we Scots can be a supercilious lot: that old “… I knew your father…” thing; and those in the professions do tend to get prone to viewing things through a prism of self-interest.  Although it has to be said politics is not much better: it can be a tawdry affair; elections have to be won, public opinion satisfied and those elected can sometimes lack even basic skills.

Also, it has to be conceded particularly in relation to criminal law, Professor Alistair Bonnington has a powerful case: there is a litany of ill-considered, poorly drafted laws or proposals from the Offensive Behaviour at Football (Scotland) Act 2010 to The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 to the current proposals to abolish the rules of corroboration in criminal trials.

But to suggest somehow that Scots Law thrived and flourished in the 300 years before the Scottish Parliament was created is less credible. If it did so, it was only despite the neglect of Westminster: who often couldn’t find the time to pass Scottish Acts of Parliament.

Also Professor Bonnington does seem to suggest that bad law making is a specialist skill the Scottish Parliament has developed all on their own, but the truth is it they don’t have exclusivity on it. Poorly drafted laws abound throughout the UK, and you can almost set your watch on new criminal justice bills being introduced by Westminster to deal with new outbreaks of youth crime.

Let’s, however, remember the Scottish Parliament has done a lot of good: it has reformed Scotland’s law of Diligence and Bankruptcy and created one of the most modern and progressive systems in Europe; it has introduced laws protecting the rights of women to breast feed their children in public; introduced protections for home owners and tenants to avoid unnecessary homelessness; reformed rape laws which  allowed rapists to walk free and continues to introduce land reform.

That’s not to say some of the Parliament’s laws would not be better off being repealed and some would have benefitted from a tad more consideration when they were drafted.  Also it probably would help if  parliamentarians did do their jobs  and  properly scrutinised Government legislation in the committees.

However, Scots law is not a museum piece to be preserved and not touched; it’s not precious. It’s a working system of rules and those rules have to be changed occasionally.  Sometimes those changes will be in response to events or public outcry; sometimes because of government policies;  and sometimes because there is a genuine need.However, as much as it’s true to say Parliamentarians would benefit from consulting more and thinking twice before enacting; it’s also true to say a lot of their laws have contributed to improving the standards of living of the Scottish people and the status and kudos of Scots Law. It’s also true to say many of us will just have to accept there is a Scottish Parliament and it is their job, after all, to legislate and make laws. 

5 responses to “The Scottish Parliament Has Not Damaged Scots Law (Revised)

  1. Alan, my interpretation of this is that Bonnington is charging the Scottish Parliament with having, since 1999, diminished the independence of the Scots legal system to a greater extent than the UK Parliament managed to in three-hundred years.

    The BBC article does not report him as accusing MSPs of not being up to the job. That may have been said by others elsewhere – indeed, you allege that MSPs lack certain skills – but it is not what he has said here. He did say, among other things, that the Scottish Parliament seemed to legislate in accordance with the agenda of tabloid newspapers instead of creating laws for the public benefit. Anne Ritchie appears to agree with this and so do I.

    I do not know if Bonnington’s central claim is accurate because I have little knowledge of what damage the UK Parliament has done to the independence of Scots law over the last three-hundred years. However, I do feel that the Scottish Parliament has diminished the independence of Scots law. Not by its existence but by its actions. It is not unreasonable to expect the Scottish Parliament to protect the independence of Scots law and the UK parliament to erode it. Similarly, it is not unreasonable to expect a Nationalist administration to protect it and a Unionist one to erode it. Nor unreasonable to expect a Nationalist administration to make less use of the Sewel Convention than a Unionist one.

    I agree that the abolition of poinding and warrant sales is an excellent example of much that the Scottish Parliament has done that is good. Abolition of the requirement for corroboration (for some offences), abolition of double jeopardy (for some offences), considering previous convictions during trial, increased periods of detention without charge, offensive behaviour and threatening communications legislation – these are not good, in my opinion. When it is done with the express intention of bringing Scots law into line with something else, it is not difficult to argue that it erodes the independence of Scots law.

    • Hi Graham,

      Thanks for your comments.

      I take the view and it is an opinion piece, if you are saying that MSPs follow a tabloid agenda rather than creating laws for public benefit, there is an implication in there that some are indeed not up for the job.

      I also take this view, and I do say some (not all as I believe if they all were we would see more robust scrutiny of laws and defences being erected against being railroaded into using emergency laws as we saw after Cadder v HMA.)

      I do think Professor Bonnington makes some excellent points regarding criminal law and think his intervention was extremely useful for the debate it stimulated. I don’t think speaking generally, however, it is possible to say that the Scottish Parliament has damaged Scots Law. There are numerous examples, and I give only some, where they have been able to legislate to improve laws that have become dated and desperately in need of reform.

      I suppose you could say the Act of Union did infringe on the independence of Scots Law. The House of Lords did become the supreme court of appeal in Civil Matters, UK legislation was passed; but can you really say the Scottish Parliament infringed on it? Their role is to make and develop the law as a living organism. It is ultimately for them and us as the electorate to say whether corroboration, for example, is required in criminal cases. Prof Bonnington, you and I may disagree with that and we can make it clear we do, but its ultimately for the Parliament to decide. The only way I can see the Scottish Parliament has infringed on Scots Law’s independence is by the politicalisation of the the role of Lord Advocate and Solicitor General and in that regards, I share Prof Bonnington’s concerns.

      But Scottish Parliament damaged Scots Law, generally speaking and on balance I would say no.


  2. Alan, if by “generally” and “on balance” you mean that, of all the legislation passed by the Scottish Parliament, the volume and impact of that which has diminished the independence of Scots law is outweighed by that which is not, then we agree.

    Of course Scots Law should be subject to change. But for the purpose of being brought into line? No.

    Bonnington does make some excellent points (also on the independence of the Lord Advocate) but, unforunately, his intemperate language and clearly politically partisan performance on Newsnight detracts from them. The real and important issues are clouded by man-playing in a game of political football. However, others (eg Ian Hamilton) have expressed similar concerns which could not be said to be politically motivated.

    It should be shocking that the responsibility for holding the Scottish Government to account on this is falling to individual lawyers.This is the result of a toxic Scottish political culture, entrenched in both parliaments, preventing the opposition and parliament from functionig properly. With the public paying the price and their wages. Disgraceful.

  3. You are both spectacularly missing the point…(possibly deliberately?)

    The issue here is that the Lord Advocate has a duty under law to be seen to be independent, neutral and incapable of being influenced….These are prerequisites of his job as the top law officer in Scotland.

    By accepting his current political role, as part of the Scottish Executive Cabinet, he is changing for ever his duties to the law and the position of Lord Advocate.

    His position is now ultra vires and he should resign forthwith?

  4. Pingback: “State employee” Lord Advocate becomes Government “spear carrier”: Bonnington | The Firm

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