Legal Issues
Kaitlin Dryburgh
Why does this keep happening? That's the question puzzled faces are asking of the Scottish Governments recent run of poor legislation. It’s now happened too often for it to be blamed on bad luck. The proposed Children (Care and Justice) Bill looks to be repeating its predecessors by including clumsy and ambiguous wording that could have further ramifications than intended.
The Bill looks to alter the way children are treated by the justice system, in the hope to meet higher standards and reduce re-offending. Yet lying within the detail is the ramification that anyone who publishes any information leading to the identification of a person under the age of 18 who was either a victim or witness to a criminal incident, would do so illegally. That means in incidents such as the Dunblane school shooting there could be no specifics about the school it took place in, or any of the victims. Journalists would very much have their hands tied when it came to any crime or incident involving a person under the age of 18. This could have big consequences, consequences that don’t seem to have been addressed or considered.
But that hasn’t really stopped them in the past. We can look to the Hate Crime Bill, Gender Reform Bill, The Justice Reform Bill which will include pilot juryless trials, the government’s recent plans to ban conversion therapy and even as far back as The Offensive Behaviour at Football Act. All of these examples show similar traits of poorly thought-through content that has the likelihood to alienate and persecute a section of society through ambiguous wording.
Is it a case of poor legal advice or just a lack thereof? Surely any competent legal advisor wouldn't have suggested they carry on with some of these Bills, not if they wished them to succeed. But is it a case of not wanting to listen?
Or perhaps the Scottish Government’s track record of inadequate use of the consultation process is starting to become blatantly clear. Journalists have complained there was no proper attempt to consult their opinions in the current proposed Child (Care and Justice) Bill. Common Weal has had plenty experience with this. Just take the National Care Bill, Common Weal along with a whole host of care professionals responded with vigour to the consultation, yet this was ignored. Now the Bill is on 'pause', perhaps shortly to be back unchanged, and the Scottish Government’s reputation once again took a battering because of it. But that is one of many examples. Common Weal exposed the Scotwind scandal, a scandal that could have been avoided had the consultation process been valued, as well as the proposed expansion of childcare provision which many, including us, stated would reduce quality if investment in facilities and staff didn’t take place, and that’s exactly what happened.
If the consultation process was fully valued and did indeed consider the professional opinions from a range of voices then perhaps there wouldn’t be so many problems and opposition when legislation is set to be implemented.
It often appears that the Scottish Government decides on the outcome they want, the issues they want to overcome and come high or hell water that’s what they will achieve. But the process and the other actors that may be affected aren’t seriously considered.
Take the Victims Witness and Justice Reform Bill which is making its way through Holyrood. The overarching goal of reforming the justice system is to get it moving faster and increase conviction rates. There are many changes included in this spicy Bill, but without a doubt the most controversial is the idea to conduct juryless rape trials. Based on rather shaky evidence that juries bring with them myths that help to drive down rape conviction rate, the decision has been made to do away with them and just have a judge (who apparently seem to be immune to myths). Interestingly, the new Bill will also provide the Lord Justice General with the power to remove a judge, with little explanation as to how that would occur. Could it be that if conviction rates are underwhelming low (for the Scottish Government) a judge may be given their marching orders?
Yet, the pilots for such juryless trials are most likely not going to happen. If sufficient homework had been done they would have realised that the majority of defence lawyers wouldn’t in a month of Sundays suggest that their client ever take part in something such as this (as consent will have to be given by any accused). Damningly the Scottish Solicitors Bar Association which is about to ballot members on the juryless pilots have stated it would amount to "professional misconduct" to allow their clients to take part in such an experiment. What would they even say? ‘Please do take part in this experiment whose only goal is to try and convict you no matter what’. As of right now this poorly considered element of the Bill is not going to happen. There are also many other aspects that anger Scottish legal professionals that may also come across opposition, such as ‘trauma-informed practice’.
A case could also be made for over legislating. If the reason behind low conviction rates in rape cases was down to myths, perhaps introducing such a drastic measure of getting rid of juries is unnecessary and instead public education is better placed. Although the evidence isn’t ironclad, if juries were done away with the cause of the problem still hasn’t been dealt with, misinformation surrounding rape. Sometimes legislation isn’t needed or can’t be implemented in isolation and instead public opinion must also be moved.
Still perhaps the greatest example still remains the Gender Reform Bill, which caused the greatest ruckus resulting in a Section 35 order being used by the UK Government to block Scottish legislation. Regardless of the intent of the Bill, this was a clumsy piece of legislation that simply wouldn’t have worked. Although Scotland should be independent from the UK, it currently isn’t so we still have to legislate with this in mind. It is a waste of time and money to pretend otherwise. On the other hand if they seriously did believe the Gender Reform Bill wouldn’t affect the UK Equalities Act and individuals gaining gender recognition certificates in Scotland would face no difficulties when they went to other countries within the UK, they were extremely short-sighted. This was a piece of legislation that was always doomed to fail. Perhaps there was a political motive behind it, I don’t think it would be far reaching to say there was, yet it’s certainly adding to the Scottish Government’s reputation of writing legislation that is doomed to fail or cause uproar.