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. 

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