Holyrood's scant sectarianism fortnight...

Today is Friday the 10th of June. A cause for celebration, for many of you. The long week's work is done. Shoes are kicked off - and with any luck, it will be a beauteous evening, calm and free. Wine glugs a friendly glug as it slaps into the belly of the glass. Slurping it down, you may well feel soothed, as your worldly cares evaporate for a time. Ordinary mortals, many of our legislators likely share in such rituals of relaxation, idly anticipating what next week might bring.  Some of their minds, no doubt, are already turning to schemes for Holyrood's summer recess, which runs from the 2nd of July until the 4th of September. 

But not, I fancy, Kenny MacAskill and his oppressed officials, who still have weightier matters to contend with. One third of the month of June has already passed - and we still haven't seen a single section, clause or word of the Government's proposed anti-sectarianism Bill. As you will likely recall, Alex Salmond invoked a spirit of emergency, impetuously promising that the legislation - whose precise ambit remains totally vague, both at the level of its ruling policy aims and its legal shape - would be signed, sealed and promulgated before the start of the new football season. Should it and will it apply to "peddling bigotry online"? Are we talking about extending Tony Blair's "incitement to religious hatred" law to Scotland? Are the government primarily striking at sectarian speech with a public order dimension, or is something broader intended? Will any new offences created be limited to incitements to violent conduct, or might expressing other hostile sentiments based on religious or irreligious feeling be criminalised? 

Given the present time frame, the earliest the Bill can be formally introduced is Monday of next week (13th), though I have no intelligence on when the government plan to do so. Under the Scotland Act 1998 (§31(2)), the proposed legislation will also have to be submitted to the Presiding Officer before introduction:

"... to decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision..."*

With a Bill of this nature, assessing legal competence is by no means a straightforward endeavour. While some of the anticipated sections may clearly fall within Holyrood's powers, others aspects will be knottier, depending on what Ministers concretely propose. For example, the Scottish Parliament is constrained by the European Convention on Human Rights and any law it passes which is incompatible with the Convention is ultra vires, beyond its legal competence, and no law at all. Freedom of expression, including "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers" is a right afforded under Article 10(1) of the Convention. However, this general statement of principle is heavily qualified by 10(2), allowing Member States to limit freedom of expression on a number of grounds, including "the prevention of disorder or crime", amongst others. Article 10 is clearly engaged, but whether or not sections of the proposed Bill are clearly justifiable infringements the rights it enshrines - and thus within the parliament's legislative competence - will very much depend on the offences the Bill hopes to create. Criminalising threats of violence would pose no issue - but generally proscribing "peddling bigotry online"? That's far, far more problematic.

There are also some curious devolution aspects which most will not have considered. "Telecommunications" are subject to a specific reservation of power to Westminster under Schedule 5 of the Scotland Act (C10). In their remarks, both Salmond and MacAskill have explicitly discussed targeting sectarian expressions on Twitter and on Facebook groups. This Bill is clearly not a general attempt to regulate the internet, but it does touch on an reserved area - which makes discerning legal competence less than self-evident (see further the UK Supreme Court's decision in Martin and Miller v. H.M. Advocate, which similarly addressed an issue of devolved legislation, and whether it "related to" reserved matters under the 1998 Act). The critical issue, with time a-wasting, is that the Presiding Officer's assessment of the Bill's competence might take a day or two, depending on the level of pre-submission communication between Marwick's office and the Cabinet Secretary's.

We might, therefore, expect the Bill to be introduced some time in the middle of next week, rather than from the get-go on Monday morning.  At the other end of the calendar, we have the summer holidays. Realistically, Thursday the 30th of June is the latest day on which Holyrood can pass the final Bill before the recess and I'd expect to see the Stage 3 debate and vote staged on that day. Basically, the Scottish Parliament will be afforded a total of (at most) just over two weeks in total to scrutinise these as yet nebulous proposals, to question their questionable rationale, to explore their ambit and trace their implications. The idea that Holyrood is seriously being invited independently to analyse the proposals to be set out in this Bill is ridiculous, not to mention the wider community of the realm, who are similarly muted by Salmond's heedless and needless expedition to slap a legislative bandage over this manufactured emergency. MacAskill is keen on telling us that we should trust the police, trust prosecutors and our courts. To his Scottish parliamentary colleagues, he commends a fourth trusty band of characters - trust us too. Thus far, this whole endeavour has been a mishandled, reckless, politically self-indulgent flim-flam. Serious issues deserve to be addressed seriously, not hazardously rattled off like a half-prepared undergraduate essay.

*[Sic] This is a profoundly irritating example of the unnecessary use of the male pronoun to encompass the female. An inapt usage, in modern legislation.