26 February 2009

Parliamentary Parenting Skills

Is your parliament ten years old or less?

Are your elected representatives growing listless and bored without new and up to date legislation to play with?

Are your ministers too bloody busy to dream up a cheap wheeze to keep the bairns occupied?

- Lallands Peat Worrier may have the answer!

Consider the following ideal-typical situation. You had a parliament, primed with plucky researchers, stuffed with the stentorian senatorial souls, fit for deliberation, free time oozing out of their pockets. The Ministers give us nothing to do! they insist, walnut faces folding disappointedly. Salaries slowly accumulate as the days and weeks of the session smear by with all the animation of falling honey. Boredom sets in, the purposeless ferment of inactivity, oversight and meaningless discourse begin to lick at the senators' consciousness. Allegations of unjustifiable ministerial inactivity follow, remorselessly.

This, roughly - give or take a verbal flourish - is the situation the Scottish parliament finds itself in at present. We can expect questions of independence, enhanced financial autonomy - and various other permutations - to distract the eyes of the constitutionally excitable. However, the positions of the various Scots political parties on the issue seem increasingly to have crystallised - and the Calman cronies, by consequence, look increasingly likely to fudge matters, disappointing everyone - or simply doing what they are told, and taking a generous dollop of time to say so. Although not without a legislative agenda - embracing more or less progressive themes in areas of sexual offences and climate change - the pace is hardly Olympic. Much of this is put down to politick bickering. Professional lamprey impressionist - and I gather, sometime leader of the Labour Party in Scotland - Wendy Alexander referred to the SNP governmental agenda as "legislation 'lite'".

Hilarious. She does, however, have a point. It behoves a conscientious ministerial team to keep their representatives active. It is all very well to cite and extol the perils of minority administrations, and in particular, the difficulties of "commanding" (another for the catechism of cliché methinks) a majority in Holyrood. Nobody will deny that any plain abacus thinking about majorities constrains the SNP significantly, if legislation is hugely contentious. Some sort of cross-party agreement on potential enactments is mandatory. However, it seems to me that legislative inactivity - however masterly - might prompt needless mischief and is at its most basic level an unjustifiable squandering of an opportunity.

In particular, if I had to make a suggestion, the government might consider the needful and bumper task of finally enacting a Criminal Code for Scotland. Thus, far legal reform in Scotland has been distinctly patchwork, a splendid example of such being the Sexual Offences Bill presently awaiting final parliamentary consent. Under the auspices of the Scottish Law Commission, several Scottish legal academics have produced a draft code which can be a valuable resource and basis to conduct a wholesale public debate on the proper ambit of criminality in Scotland. I certainly wouldn't care unreflectively to privilege these men and women's views on the subject, however eminent. For those who have certain unformed and uninformed ideas about the present criminal laws a read through the commentary accompanying the draft code may come as something of a painful surprise. Both the extent to which the criminal law in Scotland is judicially contrived through the Common Law, and is still largely informed by Baron David Hume's Commentaries on the Law of Scotland Respecting Crimes written in 1797.

Certainly, the judiciary have made some reforms through interpretation. Notable examples including the High Court of Justiciary's redefinition in 2001 of what constitutes rape and the progressive decisions finally resulting in the abolition of the appalling exception which rendered rape in marriage legal until the 1990s. Lazy press coverage of these decisions are disposed to suggest that in the process Scotland had "amended" its laws. It isn't semantics to dispute this claim. An essential principle worthy of being observed in matters of criminal law is that - to a greater or lesser degree - it should be possible, as an untutored citizen - to determine what is and is not criminal. Or at least to make some start at doing so. Moreover, Scotland is constrained by the terms of the European Convention on Human Rights (1950), Article 7(1) being the operative section:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
So how well does the Common Law succeed in fulfilling this obligation? In Scotland, if one wanted to glean any overview at all of the criminal law addressing areas not covered by legislation, one would have to invest in an introductory student textbook. In my view, this is unsatisfactory. Statutory interpretation can obviously radically transform the ostensible meaning of texts, making mandatory professional advice in particular situations. That, of itself, does not seem to me a sufficiently convincing reason not to engage in wholesale reform.

Reducing matters to a code provides a clear basis for decisions, an easy starting point for the curious and an integrated project amenable to continuous reform. Mystic Common Law, speaking with the dust-cracked voice of the 1700s, does not seem satisfactory. At times, in the absence of governing precedent, the truth is that nobody knows whether certain acts "are criminal or not". One prominent example, often missed or muddled by the media is the question of assisted suicide. Contrary to the impression given by some, the Suicide Act 1961 does not extend north of the border.
So is it legal or not?
Honest answer: no clue.
Another area of concern is breach of the peace - the edificial expansiveness of which is harshly witnessed by the ludicrous matter of one man and his bike in Ayr.
Could he had found out what he did was illegal before he packed his bicycle pump (or pumped his bicycle)?
Honest answer: no clue.
Even applying a generous judicial perspective, it is difficult to see how this quantity of uncertainty and Article 7(1) of the European Convention can be compatible. Matters become potentially more explosive when you consider that the Lord Advocate, as a member of the Scottish Executive, is constrained by the Scotland Act 1998 and so by the Human Rights Act 1998. On a harsh interpretation, such is the pervasive uncertainty of areas of the common law of crimes in Scotland, the law is not foreseeable because there is no law, and by consequence, any imposition of judicial penalty is not only arbitrary but also retrospective.

In sum, tyrannical and unjustified. The matter needs dealt with sooner or later. Why not now?


  1. I've put this on my Subrosa's Super Seven this week. Sorry it's stuck on the end but the post was already up and I just happen to find this. It's too good to leave out this week.

  2. Hello, LPW.

    So presumably this aspect of judicial precedent incompatability with ECHR has been tested in court?

  3. A complex area, about which a number of points can to be made. The central thrust of my comments do not relate to particular judicial incidences - what I'm getting at is that, in reality, whatever fudging decision a Scots Court hands down - we are not being served by the laws as they stand.

    One can have sympathy with the Senators of the College of Justice. Find one manifestation of Scots criminal law incompatible - and the rest of its substance edges towards a normative abyss, leaving the system in ruins.

    However, there have been some specific points of review. You might consider how the case of Smith v. Donnelly narrowed the scope of breach of the peace in light of Article 7 of the European Convention on Human Rights: