"Completely Meaningless" - Scottish Legislative Argument

[LexMitior]

www.heraldscotland.com/politics/19407758.uks-top-judge-calls-scottish-government-argument-completely-meaningless/

This is a very funny (and true) assessment by Lord Reed of the current SG arguments presented by the Lord Advocate in the Supreme Court. Lord Reed has not "been kind" and has said what many in the legal profession have been thinking for some time - that bills presented as law by Holyrood are uncertain.

It’s amazing to see such,ahem, clear language in such circumstances.

Embarrassing. The SG and it’s team really need to get a grip.

And how much is this all costing?

It will be costing a huge amount of money

There's an opinion piece in the Herald about this. He publishes the full text of the Scotland Office's response to this and its hardly what the SNP claimed it was. His final few sentences sum it up for me. Sadly, I absolutely believe that they passed what they knew was bad law in order to pick a fight with the big bad UK over an emotive issue, knowing full well that most of the public only pay attention to the headlines.

"The UK Government suspects SNP ministers ignored their warnings about a lack of legal clarity and pushed ahead regardless to get a new stick to beat the Tories with at the election.

'See Westminster? They’re even against children’s rights, the monsters.'

If it was an electoral tactic, that would be cynicism of the basest kind. Promoting bad law, ostensibly to help children, in order to help the party."

Yes this was clearly a test case done deliberately as the argument is dire.

But it has a few broader implications for Scotland which bear thinking about.

1. Scotland has a government that will draft a law that has to be litigated to make it clear. This ridiculous argument means that you have government who is happy to pass laws that are unclear

1. This is a corruption of the balance between the citizen and the state. It gives the balance of direct power to the government, as the average citizen does not have the means to litigate against the government

1. This is not the only bill be problematic in legislative clarity terms. The Hate Crime Act (which is not within the remit of the Supreme Court unless human rights incompatible) has similar issues, as does other criminal law legislation in Scotland. This is legislation that can have Scots and those resident sent to prison.

1. The lack of accountability in the Scottish system of legislation is troubling. While UK Governments also sometimes present legally unclear legislation, the bicameral system, along with extended amendment and the legislative "ping pong" (that is where legislation is exchanged between the Commons and the Lords) means that a system of clarification is built in.

1. One party with an effective majority is able to pass very bad legislation without real scrutiny, and the fact that MSPs passed these bills is worrying because politics is uppermost in their minds.They have a positive duty to consider whether laws can work in practice, not just as good politics.

1. The degree of trust placed by voters in the SNP seems worrying - democracy and good law, good law for Scots needs that. Yet a persistent vote for independence above all is corrupting that, and indeed, some long standing aspects of legislative drafting.

1. Serious divergence from English legislative practice - 10 years ago you would have said the Counsel who drafts these bills would have adhered to similar skeptical standards if not higher. Scots lawyers were to be feared. You might not say the same now. In other words, the essential relationship where Scottish lawyers were often much tougher and more technical than English counterparts has been totally lost.

I'd hate to try and be a lawyer in-house at ScotGov. It sounds horrendous.

Lord Sales said he suffered “similar puzzlement”

I would be mortified if a court had said that me.