20 March 2012

Same-sex marriage: Holyrood's impending stramash...

Yesterday, I dipped into the arcana of how Holyrood makes its laws, its weaknesses, and the wages of that weakness. My business in doing so was to begin to think through - and encourage some thought - about some of the detailed constitutional possibilities before an independent Scotland (and concerns which should animate us, whether or not the United Kingdom breaks up). I hoped to show that the issue of whether or not we should have a second chamber of parliament - say - isn't just a matter of abstract constitutional architecture, but poses important practical question too about how we want the law governing us to be made. In response, Robert Black asked...

"Even with a revising chamber, the legislation emanating from Westminster is regularly subjected to scathing judicial criticism. Is there any evidence at all that the standard of Scottish Parliament legislation is lower than that of Westminster legislation?" 

My intention wasn't to draw negative comparisons with "the other place", but Robert's observation raises important considerations. What is the interaction between institutions and structures and their effectiveness? I'm not a man for iron laws, and would cheerfully concede that there is nothing necessarily effective about a bicameral system, or ineffective about a unicameral parliament. Much, as always, depends on the virtues and capacities of individuals, but virtues are acquired, not innate, and can be shaped by institutions and their governing expectations.  Lest anyone regards all this as suspiciously abstract, I'd wager that we'll shortly experience a parliamentary occasion in Holyrood which will vividly fill in the practical colour: the same-sex marriage Bill.

It will almost certainly be an Executive Bill, introduced by Nicola Sturgeon, but probably subject to a "vote of conscience" in the larger parties. It is easy to see how uneasily this free-for-all fits with the Scottish Parliament's procedures. We didn't really get a taste of it last year, when Holyrood voted down Margo MacDonald's assisted dying Bill at stage 1, after the ad hoc committee formed to review its general principles recommended parliament reject it at that stage. After a single vote of the whole chamber, Margo's Bill was defeated. Neat and decisive, but only because the range of contentious issues sunk beneath the general principles of the draft never had to be dealt with, reasoned and argued through.

Contrast this with what we can expect on same-sex marriage. Ministers shall bring forward a Bill - but fellow members of the government will, I understand, be free to vote against it.  It is easy to see that some of them may become active agitators and coordinators of opposition to the proposal. It will almost certainly pass stage one consideration in the parliament - a majority will endorse its "general principles" - but then much of the trouble and interest starts. 

We are, I think, too disposed to think of a "conscience vote" as a way of legitimating dissenters, while ignoring their preferences: here, absolving certain pious MSPs - and particularly, ministers - from the embarrassing and politically damaging burdens of rebellion against a government policy which they may vigorously dissent from.  What this conception doesn't appreciate - or prime us for - is enacting legislation where conscience isn't a preserve of the defeated minority, but sets everyone free to follow their agendas, freely advocate their preferences and lodge counter-proposals.  It is all very well to ask Salmond questions about the precise shape of the government Bill - but if most MSPs will be free to follow their own lights in formulating the final text, ministerial preferences are just a very starting starting point.

Say, hypothetically, that Salmond tries to finesse his commitment to same-sex marriage, and induces Sturgeon to introduce a Bill initially similar to the proposals being advanced by David Cameron: same-sex civil marriage only, but no capacity for any "religious" bodies to do so, however they might be minded on the subject. By the by, it is worth recalling at this juncture that the bodies who would be banned from conducting such ceremonies include the Humanist Society (who conduct more "religious" weddings in Scotland than the Catholic church). Nevertheless, say moderating unreason takes hold and that is the official governmental proposal. We know that there are many in the parliament - folk in the SNP - who we might expect to argue that...

"... religious freedom ... cuts both ways. Just as those faith groups who do not want to conduct same sex marriages should have the freedom not to do so, I do not believe that should be at the expense of those who wish to conduct such ceremonies."

Assuming that there is any steel in these sentiments, we can expect amendments to fly about - and unusual cross-party caucuses to form, agitating in one direction or the other.  Those against the whole idea could be expected to oppose any extension of the language of marriage whatever, civil or religious. The potential knot of folk who might be snared by the notion of "compromising" on civil marriage can be expected to oppose empowering religious bodies to conduct same-sex marriages, while the last uncompromising group could be expected to support both propositions. By contrast, if the government introduces an uncompromising Bill to allow religious and civil same-sex marriages to take place, it at least seems likely that some enterprising tribune will conspire to bring forward a Cameron-inspired compromise, a vote on which will have to be taken. 

It promises to be a strange process of consensus-building - strange for the parliament that is - and nightmarish difficult to manage if resistance is protracted, and divisive amendments are forthcoming. The parliament's primary use of committees for legislative scrutiny also seems singularly unfit properly to undertake this process.  All of the vital considerations will not be in the committee room - but in the whole balance of opinion the chamber. And for that matter, how do you form a committee where the debate is framed in terms of conscience voting? Last session, the Health Committee was deprived of its jurisdiction over Margo's Bill, and a new ad hoc committee under Ross Finnie was formed to scrutinise it instead.  Some were disgruntled by that and detected in it low political jiggery-pokery. It may be that that precedent is followed; otherwise, we can expect the role to fall to the presently-constituted Justice Committee, which represents a balance of the parties of the parliament, but not (to my knowledge) a "balance of conscience", if I can put it that way.

Much of this depends how concerted the opposition to the proposal in the parliament proves, whether there is a confused will-to-compromise given the heat of some religious reaction, and what ministers' concretely propose in their draft Bill.  I wonder if it might not have been savvier if - like David Steel's 1967 Abortion Act - a private member had been charged with introducing the thing, albeit supported by ministerial acquiescence. It may be that Sturgeon handily manages this petard without being hoist upon it - but this is explosive material, which may prove wonderfully challenging for the government to manage both practically and politically. 


  1. Drafting – whether it be a contract or legislation – is not easy even in ideal circumstances. But textual clarity and certainty are possible at all only where there is agreement about the result to be achieved. All too often, in the real world, there is not. In many contracts the only way in which “consensus” is achievable, is to ignore or fudge areas of difficulty. Then, when the contract eventually ends up in court, the result is that the draftsman is excoriated by the judge(s) for his ineptitude. In fact he was not inept at all: he had adopted the only possible strategy to achieve the peremptory command of the negotiating parties, viz the production of a form of words to which both (or all) of them could append their signatures. Exactly the same is true of legislation. There are good legislative draftsmen and bad (I have encountered both) but even the best cannot surmount either lack of clarity in the objective that the parliamentarians seek to achieve or parliamentary insistence that contradictory objectives be embraced in the same legislative instrument. I suspect that this, regrettable though it be to purists such as I, is simply a fact of parliamentary and political life and that no form of revising chamber or committee structure can ever overcome it.

  2. I am sufficiently old-fashioned to think that the detailed operation of the law is not a matter for Parliament anyway. You wouldn't trust 129 individuals chosen for psephological rather than intellectual reasons to design a bridge or plan brain surgery, and you shouldn't turn them loose on the mechanics of the law either. The old Scots Parliament didn't do that. Look at the Leases Act 1449: admirably concise; and it achieves its beneficial effect because, having declared a policy intention, Parliament left it to legal professionals to make it work. I guarantee its more detailed successors won't last five and a half centuries!

  3. I think the stramash in Scotland has already happened and I would guess that the SG will bring forward a bill that allows for same sex marriages in religious settings as well as civil settings and also allows for mixed sex civil partnerships. I will be surprised if more than 10 - 20 per cent of MSPs oppose that.

    There may be a stramash however as England appears to have decided to just do civil same sex marriage and not allow religious services. That creates some awkwardness as the SG would need Westminster to put something into equalities legislation to specifically guarantee a religious opr out.

    I don't think that is necessary myself but it will be expedient to pacify the reasonable religious lobby. There's nothing that can be done about the extremists.

  4. There's no need for any new legislation to guarantee a "religious opt-out". The reasonable religious lobby are not among the anti-marriage campaigners.

    The claims by homophobic religious groups that they might be "forced" to conduct marriages of same-sex couples are completely ridiculous - put bluntly, they are lying. They know they can't be forced to conduct a religious ceremony against their religious beliefs. They're just making stuff up to sound bad.

    (Also, I would guess that several of the Churches have leadership who would like to be able to wave a legal ban at dissenting clergy who feel a right in conscience to celebrate same-sex wedding ceremonies.)