What a difference a day makes …

Photo by Jim Wilson on Unsplash

Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.

It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.

This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.

Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?

Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):

This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.

In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.

The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):

This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:

  • Is the law working properly?
  • Is it still necessary?

Please find below a link to the story about this development on the BBC website:

www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 1 April 2020

Stalkers beware!

Photo by Jaanus Jagomägi on Unsplash

A few of my recent blogs have discussed the legislative process in the Scottish Parliament and several Bills that are already undergoing scrutiny and debate at Holyrood.

So, when quickly glancing at the Scottish Parliament’s website today, I was very interested to see a proposal for a Member’s Bill which wishes to toughen the law on stalking in Scotland.

The proposed measure (if given the green light) would take the form of a Stalking Protection (Scotland) Bill and it would have a simple rationale:

“… to increase protection for victims of stalking by giving police the power to apply for stalking protection orders on behalf of victims.”

Stalking was made a specific criminal offence as a result of Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, but Rona Mackay MSP, the proposer of the measure clearly believes that the current law needs to be tightened in order to give victims of stalking more protection.

As part of her rationale, Ms Mackay makes reference to England and Wales where the Stalking Protection Act 2019 has been introduced. This legislation gives the a Chief Constable of a Police area south of the border the power to apply to a Magistrates’ Court for a stalking prevention order. Clearly, she is of the view that Scotland should follow suit in order to protect victims of this type of crime more effectively.

A link to the English and Welsh legislation can be found below:

http://www.legislation.gov.uk/ukpga/2019/9/enacted

In a YouTube video, Ms Mackay provides some background to her proposed Bill and invites members of the public to contribute to the consultation by submitting their views by 21 July 2019.

A link to the Consultation document can be found below:

Click to access 20190425_Final_Consultation_document.pdf

Perhaps this is an issue which you feel strongly about and would like to get involved in shaping a new law for Scotland?

You can do this by completing an online survey (link below):

https://www.smartsurvey.co.uk/s/StalkingProtectionBill/

At the moment, there is no Bill – only Ms Mackay’s proposal for one and it remains to be seen whether she will be able to secure the necessary support to take the matter forward i.e. securing the support of 18 MSPs from at least half of the political parties or groups represented in the parliamentary bureau; and provided the Scottish Government does not itself intend to legislate upon the matter.

Copyright Seán J Crossan, 13 June 2019

A step closer? Indyref2?

Photo by Seán J Crossan

Can you contain your excitement? Indyref2 (or a second Scottish Independence Referendum) is definitely on the horizon…

… except that it isn’t, but this is the impression given by sections of the Scottish and UK media.

On 28 May 2019, Michael Russell MSP, a senior Scottish Government Minister introduced the Referendums (Scotland) Bill in the Scottish Parliament.

Does this pave the way for more constitutional upheaval (as if Brexit woes aren’t enough at the moment?) across Scotland and the rest of the UK?

Well … actually, no it doesn’t.

Are we on the cusp of a political event approximating the Apocalypse or the Second Coming? Hardly.

From a cursory glance of the Bill and its accompanying documents, it’s very hard to see any mention of Indyref2. In fact, the aims of the Bill are incredibly modest:

This Bill provides a legislative framework for referendums. It provides a power for the Scottish Ministers, by regulations, to provide for the holding of referendums throughout Scotland within the legislative competence of the Scottish Parliament.”[my emphasis]

Critically, even Ken MacIntosh MSP, Presiding Officer of the Scottish Parliament has stated:

In my view, the provisions of the Referendums (Scotland) Bill would be within the legislative competence of the Scottish Parliament.

The Bill is very limited in scope (or timid depending upon your viewpoint). There’s nothing problematic about a future Scottish Government wishing to consult the people of Scotland through the medium of direct democracy (i.e. a referendum) on issues that are firmly within the legislative competence of the Scottish Parliament. Off the top of my head, I can think of several matters which might be suitable for direct democracy e.g. local government, NHS reorganisation, Police and Fire Services reform; education and more thorny, ethical and moral matters such as abortion and euthanasia. 

In terms of the Scotland Acts 1998 and 2016, the Scottish Parliament is confined to legislating upon matters or issues which are deemed to be “devolved”. It is not permitted to legislate upon matters which are deemed to be “reserved” to the Westminster Parliament.

In a previous blog (“Bring it on! (or Indyref2?)” published on 26 April 2019), I emphasised that the last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) was permitted to go ahead because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.

Currently, it does not seem likely that the UK Government and the next British Prime Minister (who we know will come from the Conservative Westminster Parliamentary Party) are likely to agree to Indyref2 going ahead.

So, what does the Scottish Government hope to achieve?

Be in no doubt: this is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.

Scotland’s First Minister, Nicola Sturgeon MSP is calculating that she can portray the refusal of the UK Government to approve another referendum as a deliberate denial of the Scottish people’s fundamental democratic rights. If a UK led Conservative Government becomes even more unpopular, SNP activists and other independence supporters are hoping that it will become politically costly for the Conservatives to continue to oppose a second referendum.

Where will it all end? At the moment, who can really predict the future with any degree of certainty. 

Interesting times indeed!

An infographic (taken from the Scottish Parliament’s website) showing the introduction of the Referendums (Scotland) Bill can be seen below:

The subsequent progress of the Bill can be seen in the info graphic below:

A link to the Bill and its accompanying documents can be found below:

https://www.parliament.scot/parliamentarybusiness/Bills/111844.aspx

Finally, you can find links to some news articles below which discuss the implications of the Bill:

https://news.sky.com/story/nicola-sturgeon-clashes-with-tory-hopefuls-over-second-independence-referendum-11731033

Indyref2 ‘framework’ bill published at Holyrood

The Scottish government wants to hold a new independence referendum in the second half of 2020.

Postscript

On Friday 6 December 2019, 6 days before the UK General Election, Nicola Sturgeon MSP, First Minister of Scotland conceded that a legal Indyref2 was a ‘hard fact’ that some supporters of Scottish independence would have to accept.

What Ms Sturgeon was alluding to was a question of fact as we like to say in the law: the power to hold a future referendum on Scottish independence lies with the Westminster or UK Parliament in terms of Section 30 of the Scotland Act 1998.

Boris Johnson, the current UK Prime Minister has emphatically ruled out any second independence referendum if a majority Conservative Party Government is re-elected next Thursday.

Some Scottish independence activists have advocated a Catalan style independence referendum i.e. going ahead with a poll without legal authority. Understandably, this not a popular option where the First Minister is concerned when one remembers the chaotic (not to say) violent events in October 2017 during the independence referendum in Catalunya

A link to a discussion on the BBC website about the tensions over tactics in the Scottish pro-independence movement can be found below:

General election 2019: Sturgeon says legal indyref2 is a ‘hard truth’

The first minister says the only way to win a second indyref is for any vote to be legally-binding.

Copyright Seán J Crossan, 3 June and 6 December 2019

Bring it on! (or IndyRef2?)

Photo by Andrew Buchanan on Unsplash

Well, there you have it: Scotland’s worst kept political secret. First Minster, Nicola Sturgeon announced this week at Holyrood that she wishes to bring legislation forward to hold a second, Scottish Independence referendum sometime in 2021.

The trouble is that this is a matter reserved to the Westminster or UK Parliament in terms of the Scotland Acts 1998 and 2016 i.e. it is a constitutional matter. In other words, the UK Parliament must agree to any request from the Scottish Parliament to hold another referendum. The referendum of 2014 was permitted because the then UK Prime Minister, David Cameron agreed to it. This was known as the Edinburgh Agreement signed by representatives of both the Scottish and UK Governments on 15 October 2012. Under Section 30 of the Scotland Act 1998, a legislative instrument (known as an Order-in-Council) was drafted permitting the referendum to proceed on terms agreed by both Governments.

Fast forward 5 years from the last independence referendum and it would seem that any permission from the UK Government, let alone the UK Parliament is most unlikely. In fact, David Liddington MP, Prime Minister Theresa May’s de facto Deputy, hit back almost immediately in response to Ms Sturgeon’s announcement to state that permission for a referendum would not be forthcoming.

Now, Mr Liddington is correct in strict legal terms. The future territorial integrity of the United Kingdom is a matter reserved to the national parliament at Westminster – not a local parliament such as Holyrood.

And yet … this is where politics rather than strict legal interpretations might come into play. The current UK Government ‘led’ by Theresa May is weak, divided, obsessed with Brexit and lacking a majority in the House of Commons. It has a limited shelf-life. This is an administration which no longer speaks with any real authority on the great political questions of our age (and that’s just the opinion of most Conservative MPs).

Mr Liddington’s refusal may well come back to haunt the Conservatives both in Scotland and nationally. Expect Ms Sturgeon to make maximum political capital here by saying that this is a deliberate attempt to thwart the political will of the Scottish people. At the last UK General Election (8 June 2017), the Conservative Party made impressive gains in the number of Scottish Westminster seats. Since then, with the mishandling of Brexit, continuing opposition to an independence referendum might mean that these electoral advances could be undermined, even reversed. It’s by no means certain that a future Jeremy Corbyn led UK Government (not a foregone conclusion) will favour a second independence referendum. There are many factors that still have to be played out here.

Ms Sturgeon (or one of her Ministers) could introduce a Referendum Bill to Holyrood, but would this be a credible legal move? Almost certainly not: Holyrood’s Presiding Officer would (rightly) be under huge pressure to declare the Bill as not having the necessary legislative competence in terms of the Scotland Acts. The Bill would have tremendous symbolic power and would almost certainly fire up independence supporters who are itching for IndyRef2.

Never mind the legal arguments, expect the action to take place on the political front.

Please find below a number of links to articles discussing the prospect of IndyRef2:

https://wingsoverscotland.com/a-plan-of-little-action/#more-109725

Nicola Sturgeon calls for indyref2 by 2021 Holyrood elections

Scottish independence: UK government ‘will not grant indyref2 consent’

Copyright Seán J Crossan, 26 April 2019