7 Sep 12
Is the Parliament up to the job?
Much sound and fury followed Alistair Bonnington's broadside last week at the Scottish Parliament and the "damage" he alleges it has caused to Scots law in the dozen or so years since it began work – more, he claims, than Westminster achieved in the previous 300.
Alistair, who used to contribute to the Journal fairly regularly, is not averse to letting off the old blunderbuss in order to make an impact, when a more carefully targeted attack might be closer to the mark. In fact his wrath seems to be directed at certain criminal law or procedural reforms, such as the curtailing of the rule against double jeopardy or the proposed abolition of corroboration, along with the alleged politicisation of the Law Officers.
In this he has gathered a body of opinion in support, whereas those more concerned with civil law have with some justification argued that the Parliament has achieved much that is good – reforms to property law, family law, mental health and adult incapacity, and bankruptcy and diligence come readily to mind to name but a few.
Of course criminal justice – which, in fairness, has also seen a good deal of reform directed at making the courts more efficient – is perhaps most at the mercy of political leaders seeking to prove to the public that they are on their side, and it is not only in Scotland that those seeking to take a stand on legal principle as a means of avoiding miscarriages of justice are liable to find cherished values under attack.
That said, Holyrood has not always shown itself in a good light as legislator, as witness the shambles during the final stages of the 2005 Licensing Bill. And lawyers may say that MSPs do not grasp the issues involved in aspects of, for example, the emergency legislation post-Cadder. If they cannot be blamed for that latter failing, and the system is suffering as a result, some further revision process would need to be built in – though one cannot see the Government readily accepting the initial premise that there is a weakness there.
The level of consultation built into present practice is also a relevant factor, though on the corroboration front it is regrettable that ministers appear to have made up their minds at an early stage on this one despite the calls from respected sources for a full and thorough look at the possible consequences before we proceed to legislation. Even in sex offence cases, cited as the justification for abolition, there have been warnings of the additional pressure that will be put on the complainer if led as the sole witness.
These points are brought into focus when one looks at the Scottish Government's legislative programme for the coming year, announced this week. While most media attention has focused on same-sex marriage and the independence referendum, the 15-bill list as a whole represents a very substantial package of legal reform and one that is likely to test the resources of the Parliament in terms of giving a proper level of scrutiny. In addition to the Carloway-inspired criminal justice reforms, we are promised measures on children and young people, bankruptcy, public procurement, "better regulation", two new taxes, and the tribunal system – and more.
And with a single-party majority Government driving the agenda in a single-chamber Parliament, there is added cause for concern that provisions will be adequately scrutinised, and challenged where necessary.
The blunderbuss approach may grab the headlines, but is the more easily deflected. Flagging up the real dangers takes more effort, and cannot guarantee a good result, but is the challenge that needs to be taken up.