In the last decade, Holyrood has produced some truly poor legislation. From the notorious Offensive Behaviour at Football Act famously referred to as “mince” by one Sheriff, to the Hate Crime Act that has drawn warnings from every corner of Scottish society for threatening to extinguish free expression, policy-making has not always been a strong point.
Spectator columnist Stephen Daisley highlighted this problem in an article a while back, where he argued that the “hallmarks of governing and legislating in the SNP era are “ideology-first, evidence-whenever” policymaking “cooked up via consultation with favoured lobby groups”, an “undisguised executive contempt for the legislature” and a “complicated relationship between Scottish ministers and the truth”.
On the usefulness of parliament, he wrote: “Don’t look to Holyrood committees for help. Conveners are directly appointed by the whips, and it shows. Don’t expect problems to be addressed in the chamber…the SNP group at Holyrood functions essentially as a bloc vote, with challenging questions about government legislation uncommon…Holyrood isn’t a parliament: it’s a 129-seat rubber stamp”.
It’s a bleak portrayal of the Scottish political context by a journalist who spends most of his waking hours inside it. I don’t want it to be true. However, as somebody who has campaigned against illiberal and unworkable legislation in Scotland for the last eight years, I can strongly relate to it. I’ve seen warnings about problem legislation dismissed by the government, and abject failures of scrutiny by parliament on various occasions.
I cut my teeth as a campaigner opposing the deeply unpopular Named Person Scheme, ushered in under the Children and Young People (Scotland) Act 2014. The problems with this policy were apparent from day one. Its vague definitions were expected to inspire over-the-top intervention in perfectly normal families by the state, engender a Soviet culture of mistrust across professions, and lead to unlawful harvesting and sharing of sensitive data.
These criticisms were ignored by the government as it steamrolled legislation through parliament using its unprecedented 2011 majority. Even when the problems began to emerge in real life – real families facing real injustices – Ministers continued to bury their heads in the sand, blasting critics as callous “scaremongerers” who didn’t care about children. It took a legal intervention and years of campaigning by outside lobbyists to finally see this policy brought to heel.
The No to Named Persons campaign (NO2NP) demonstrated through the courts that the proposed scheme was not a ‘voluntary point of contact for parents who wanted it’ as Ministers claimed. It was about “compulsory state-sanctioned monitoring of every child in Scotland”. NO2NP uncovered detailed dossiers filled with inaccurate information on families, compiled by Named Persons behind their backs.
“The problems with the named person policy were apparent from day one”
In 2016, after a battle costing the Scottish taxpayer over £500k, the UK Supreme Court struck the scheme down, saying core aspects of it were “incompatible with the rights of children, young persons and parents” under human rights laws. Judges couldn’t resist having a pop at Ministers, with one notorious line from the judgment stating: “The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.”
A few years after the Named Person debacle, I worked with academics and parenting experts to oppose a law criminalising parental smacking. There was no evidence that existing laws were failing to protect children. These critics feared an over-broad ban on ‘all physical discipline’ could see social workers flooded with trivial cases, and good parents treated like criminals. These legitimate and important concerns were ignored.
The stakeholders in this campaign soon discovered how laughable ‘committee scrutiny’ can be at Holyrood. The Equalities and Human Rights Committee, appointed to examine “smacking ban” proposals from now-retired Green MSP John Finnie, was woefully unfit for the task. For a start, its convener at the time was Ruth Maguire MSP – Mr Finnie’s daughter. Ms Maguire and four other members of the committee were also co-signatories to the Bill.
A plea to replace vocal supporters of the legislation with other, more impartial, members fell on deaf ears, being dismissed by Holyrood’s Presiding Officer. This snuffed out any chance of genuine criticism. From day one, ‘scrutiny’ was a tick box exercise. Almost 9 in 10 witnesses invited to appear before the Committee were strong supporters of a ban using the full force of the criminal law. The Committee simply didn’t want to hear the views of those who advocated any other approach.
“The stakeholders in this campaign soon discovered how laughable ‘committee scrutiny’ can be at Holyrood”
On more than one occasion, MSPs on that committee openly derided those expressing concern that criminalising mums for tapping their child on the hand may not be the most sensible idea. I recall an eminent professor from the US who had analysed global evidence of the effects of physical discipline on children being laughed at as he appeared via video link. Tory MSPs on the committee were frozen out of discussions. It was real playground stuff.
The result of all this ‘scrutiny’ was a law that does not rule out parents being criminalised for extremely mild discipline. This was rubber stamped by parliament as a whole, which similarly failed to address concerns by cops, social workers and other experts. To make matters worse, pleas to allocate significant resources to awareness-raising about the new law fell on deaf ears. The Scottish Government set aside just £20,000 for awareness-raising – far less than in the smaller jurisdiction of Wales, where Ministers ring-fenced £2,759,000 and allowed a two-year delay for parents to be informed.
Hate Crime Bill
Most recently, I worked with a broad coalition opposing the Scottish Government’s ‘Hate Crime Bill’. This was, perhaps, the most ill-devised legislation produced in the history of the Scottish Parliament. Vague ‘stirring up hatred’ offences in the bill were so problematic they inspired a backlash in the arts, journalism, academia, and policing and united groups as polarised as the Roman Catholic Church and the National Secular Society in common concern.
Given the sheer scale of opposition to these plans, you’d have thought the government might withdraw them and think again. Holding one’s hands up doesn’t seem to be in the Scottish Government’s playbook, though. It pressed on, determined to get the bill over the line. A new higher threshold for offending was eventually added, thank goodness. However, Ministers were only prepared to go so far, and the committee given oversight of the bill ultimately toed the SNP line.
The end result is a Hate Crime Act that remains unclear, with free speech provisions that are nowhere near as robust as they should be. As I write, it has still not been brought into force. Ministers have delayed implementation because of difficulties in implementation. This hardly inspires confidence about the workability of this law, which covers speech on highly contentious issues including religion and transgender identity.
A poor situation
The situation at Holyrood is undeniably poor and there are various reasons for it. Stephen Daisley described ideology-led, evidence-light policy making. I echo that. Plenty unworkable and unnecessary policies have emerged in recent years. He pointed to the inefficacy of parliamentary checks and balances. That’s undeniable too. The system has been neutered by the dominance of the SNP. It wasn’t devised for majority governments.
There is another problem though, which has become more and more pronounced in recent years – perhaps because of a wider chill on free expression and a lack of viewpoint diversity in the public square. There is a notable absence of humble backbench politicians speaking truth to power at Holyrood and breaking the mould – something you do see periodically at Westminster, for all its flaws.
This deficiency is particularly pronounced when it comes to social policy. Laws like the ones I have described have been driven by a desire to appear modish or posture to a certain constituency, more than meet any particular need in society. And when they arrive on the scene, MSPs feel pressure to be seen as ‘woke’ by peers. Precious few these days are willing to stick their necks out and buck the trend.
“There is a notable absence of humble backbench politicians speaking truth to power”
Very few MSPs were willing to oppose Named Person or the smacking ban, for example. Mainly because they didn’t want to be seen as ‘against children’s rights’. They heard concerns about the details of these policies – and many agreed with them in private – but ended up voting for them anyway. Perception mattered more than principle. The same applied when it came to the Hate Crime Bill.
I fear for the outcomes of this current parliament, given this tendency. We are facing new, seismic policy proposals on gender recognition reform and assisted suicide that have the capacity to do great harm. MSPs can’t afford to be worried about how they are perceived if ignoring concerns on these proposals means endangering women and girls, and vulnerable suffering people. Yet I fear many will.
Hope for change
In his article Stephen Daisley asked whether the “only hope for better governing and better legislating in Scotland” is for “critics and scrutineers to withdraw their labour and show up the system for what it is?” As tempting as this is – it would save myself and many others a lot of time and stress – I don’t believe this is the answer. Mostly because I’m certain of the chaos it would unleash.
Real, seismic change does not come quickly. We will need to see significant structural change in the parliamentary system itself, and a sea change in the political landscape for this to be realised. I doubt that the current SNP Green administration are going to set about democratising Holyrood in the next few years. There are, perhaps, two things that could make the current situation less worse though.
First, we need politicians to find their courage. If Scotland cannot count on good governance, or checks and balances in the parliament itself, it will have to count on individual MSPs standing up, speaking up, and voting bad policies down. This especially applies to SNP MSPs as the biggest cohort, but also to MSPs in every party. If they are willing to be true to themselves and their constituents over and above the pressures of party and perception, positive things can happen.
“The pursuit of courage and generosity towards a wide range of voices at Holyrood couldn’t hurt”
MSPs must also be willing to hear views and honestly assess evidence from a diverse range of groups, not just the usual stakeholders in and around the Holyrood bubble. The Scottish political establishment is clearly mistrustful of some groups: religious organisations, small c conservatives, women campaigners and others who don’t fit the mould. Yet it is these very people who have been at the forefront of highlighting problems in policy. Their voices should be heeded, fashionable or not.
The pursuit of courage and generosity towards a wide range of voices at Holyrood couldn’t hurt. And I know there are MSPs across the spectrum who have it in them to champion these values in the next term. Who knows what could happen if they do.