Good intentions and bad laws

46c72dad-6b42-4a05-96da-186638f40cfa-37498-00002da461366c65-3Ever notice how the exact same words can mean very different things depending on their context?

Last week, when the Scottish Parliament passed the Children (Equal Protection from Assault) Bill, a Left-wing and a Right-wing newspaper both ran the same headline: ‘Scotland becomes first UK country to ban smacking’.

The implication of one was that other UK countries ought to follow suit whereas the other was hinting at a fear that they just might. The progress pedal had either been thrust into action or the brake loosened on the handcart to Hell.

Smacking was an emotive issue and I could see sincere arguments on both sides. (I use the past tense because ‘smacking’ will no longer exist in Scotland; as a matter of law, we will be talking about parental assault of a child.) The Bill as passed reflects the latest thinking among experts in child development and education, as well as changing mores about family life and parenting.

It was championed by children’s rights organisations Children 1st, Barnardo’s and the NSPCC, charities that most Scots respect and many donate to. The legislation also brings Scotland into line with other European countries, like Germany, France and Ireland, as well as the Nordic nations. Can so many people really be wrong?

The pitfalls, though, are obvious. The Act is well-meaning but good intentions are fuel for the Unintended Consequences Generator that chugs away at the heart of the Scottish Parliament. The scope for parents to be criminalised and children’s home life disrupted seems perilously broad and the central thesis behind the ban — that children deserve the same legal protections as adults — opens up questions about parental rights, family privacy and children’s autonomy that MSPs will have to address sooner or later.

Maybe a ban is the right move, or maybe its critics will be vindicated. None of us can know with any certainty what will happen. But, as supporters of the law celebrate and opponents head home in defeat, I wonder if we’re missing the bigger picture about how the law came about and what it says about Scotland’s democratic health and wellbeing.

The legislation was introduced by John Finnie MSP as a Members’ Bill, many of which are brought forward by backbenchers each session but few of which ever become law. Given polling showing 53 per cent of Scots opposed a ban and only 30 per cent were in favour, Finnie’s proposal might have seemed an obvious candidate for the legislative remainder bin. But his Bill had something far more advantageous than public opinion or expert evidence going for it: it was going through the Scottish, and not the UK, Parliament.

A similar ban, proposed at Westminster, would find itself up against conditions which do not exist in the democratically anaemic Holyrood. There would have been robust scrutiny from a select committee with a chair elected by MPs largely on the strength of their independence from government and party influence. There would have been aggressive questioning by backbenchers willing to rebel against their party line should their conscience dictate it. There would have been more members of intellectual stature and analytical nous to challenge, and ideally improve, the Bill.

The same process would then have been repeated in the House of Lords, only with greater levels of independence, experience and insight. Outside Parliament, there would have been a wider and more viewpoint-diverse range of think tanks and lobby groups and on television and radio supporters and opponents would have been interrogated by forensic interviewers like Andrew Neil and Emma Barnett.

What happened instead? At Holyrood, committee conveners are not elected but appointed in a backroom carve up by the party whips. Some conveners are better than others but, with the possible exception of Culture Committee chair Joan McAlpine on the issue of gender, none could be said to approach the levels of independence seen at Westminster.

Finnie’s Bill was particularly fortunate in that the Equalities and Human Rights Committee convener responsible for scrutinising his legislation was Ruth Maguire, his daughter. Family ties don’t always dictate political sympathies; Maguire is an SNP MSP while Finnie is a member of the Scottish Greens, almost entirely separate parties. Still, no one who followed her chairing of the proceedings would have struggled to identify where Maguire’s sympathies lay.

While I’m not suggesting anyone acted improperly, if this same family dynamic played out in a public body, say with a health board putting the chief executive’s son in charge of reviewing his father’s latest proposal, many of the same MSPs involved here would be dashing off parliamentary questions about it.

Another glaring reason for the lack of thorough legislative scrutiny at Holyrood is the absence of a revising chamber, a role performed at Westminster by the House of Lords. We lack that crucial systems check that can halt bad legislation or at least make it better. In The Federalist, a sort of user’s manual for democracy, the Founding Fathers of the United States warned that unicameral parliaments have a tendency ‘to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions’. Because politicians ‘may forget their obligations to their constituents, and prove unfaithful to their important trust’, they advocated a legislature with two competing branches as ‘a salutary check on the government’ that ‘doubles the security to the people’.

Their Ye Olde Virginia stuffiness aside, those words from 1788 could be written today about the Scottish Parliament. While single-chamber parliaments tend to occur in small countries and though there may be scant appetite for any more politicians at Holyrood, this design flaw only exacerbates the other failings in Scotland’s democratic culture.

The Bill’s path was cleared, too, by the SNP’s decision to swing its support behind a ban. For the most part, the SNP does not function like other mainstream UK parties; its whipping system is both stricter and yet almost superfluous, given a culture in which Nationalist MSPs mostly see themselves as delegates of their party first and representatives of the people second. While at Westminster government backbenchers pride themselves on their willingness to hold the executive to account, such scrutiny is rarer, gentler and altogether less effective at Holyrood.

A small and familiar civic society and a broadcast media less combative by habit but also cowed by Nationalist accusations of bias round out the explanations for Scotland’s substandard democratic infrastructure. Advocates of the ban may be right on the merits but they should stop to think how easily a future parliament of a different political complexion could just as readily force through laws they would consider reactionary and harmful.

There is a lot of talk these days about populism but politicians only consider it populism when the populus gets involved. Inside the ruling ecosystem of Scottish public life — parliament, the third sector, the universities, and the media — banning physical discipline by parents enjoyed overwhelming majority support, was pursued fervently and using emotional language, the views of outsiders (i.e. the voters) were wholly ignored, and internal dissent was scorned in snide, angry terms. It was populism for the political class.

We hear a lot too about how the UK Parliament no longer functions properly because of Brexit. Yet the Commons has been so successful in frustrating Brexit because it is nothing like the Scottish Parliament. Had Westminster the same structures, conventions and party management as Holyrood, we would have been out of the EU long ago and anyone still complaining about their roast squirrel ration would be warned to stop talking down WTO terms.

What happened last week might make us a more liberal, enlightened country but it could just as easily prove to have wide-ranging, injurious consequences. Bad law is an inherent risk with the dysfunctions present at Holyrood. If this Bill had faced Westminster, it would be better law, or no law at all.


Originally published in the Scottish Daily Mail. Letters: Contact Stephen at


%d bloggers like this: