THE First Minister's recent call for a public debate on whether Scotland should have the power to legislate for itself on the highly controversial issue of abortion as part of the proposed "national conversation" on Scotland's constitutional future raises questions far beyond the issue of abortion itself.
It is doubtless important that the authority vested in a parliament, devolved or not, should meet the aspirations of both government and public alike. Whether a "conversation" is shorthand for giving increased authority to the public or merely a way, with the best will in the world, of simulating public involvement in major decisions has yet to become clear - to me, at least.
The idea of public engagement in the great moral and ethical issues of the day is, of course, not new. Indeed, the recent joint parliamentary committee on the Human Tissue and Embryos Bill noted the need for public awareness and engagement in important decisions, while at the same time identifying the problems associated with obtaining informed public opinion and what should be done with it once it is obtained.
The public is often consulted about important and complex moral issues, such as sex selection for social or family balancing reasons, the creation of hybrid/chimera embryos and so on. Consultation by agencies such as the Human Fertilisation and Embryology Authority has become the norm before final decisions are reached, although whether the final outcome actually represents an informed public will remains moot, not least because so few people respond to such consultations and there is no way of measuring the extent to which their responses are knowledgeable. Even the best conducted opinion polls cannot always answer these questions, nor can focus groups necessarily explicate the views of anyone other than those involved.
Around the world, organisations are struggling with how best to gauge and then utilise the views of the public. In New Zealand, for example, the National Bioethics Council - which has a statutory mandate for public consultation - is conducting an exercise in which it hopes to evaluate the variety of ways in which public opinion can be sought, so that it is both representative and informed. An uninformed debate will serve no-one's interests.
And here is one of the problems with a "national conversation" on matters like abortion. There are huge vested interests on each extreme, and probably just as many shades of grey in between. In such cases, it is all to easy for "debate" or "conversation" to be hijacked by the extremes on either side, with the importance of their views being evaluated, not by the quality of argumentation, but by the sheer organisation and volume they can bring to the table. Of course, this is true whether the people engaged in the "conversation" are Scottish, English or British.
We can all predict with some certainty who will express what opinion on abortion, and it is also obvious that the best organised campaign will be of those opposed to abortion in any circumstance. If we are to open this legislative can of worms again, we need a robust way of measuring and reflecting the subtleties of this debate - for women, for faith groups and even for potential children. Opponents of any attempt to restrict the availability of pregnancy termination will doubtless be concerned that opening up this debate again is an opportunity for organised anti-abortion groups to punch above their weight. These groups have considerable experience in mounting highly vocal campaigns and the importance attributed to them sometimes seems - to some at least - to be disproportionate. Their right to voice their position is, and must be, protected. However, it must be sieved through a lens that takes account not just of the numbers supporting a particular view but wider social, ethical and human concerns. Matters of personal conscience need to be treated particularly carefully.
Abortion is an issue of concern in Scotland, but it is not just a "Scottish" issue. In Northern Ireland, where the availability of abortion is severely restricted, women have been forced to leave their homes in order to seek abortion in other parts of the UK (when, that is, they were emotionally and financially able to do so). A kind of "abortion tourism" was generated by the fact that - like it or not - women will continue to seek termination of unwanted pregnancies based on their own personal situation and conscience. Moreover, even were we confident that any proposed reform actually did represent the majority view, crude "majoritarianism" is not necessarily the best way to proceed. The distinguished philosopher HLA Hart puts this better than any other commentator I have read. He says:
It seems fatally easy to believe that democratic principles entail acceptance of what may be termed moral populism: the view that the majority have a moral right to dictate how all should live ... The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted. No one can be a democrat who does not accept the first of these, but no democrat need accept the second.
I am not privy to how the First Minister proposes to establish and conduct this conversation, nor by what means, and in what context(s), he intends to use the information obtained. This is not an argument against a "national conver-sation" on any subject. Rather, it is a plea that the outcome(s) are robustly analysed using a subtle and appropriate method. As yet, throughout the world, people have struggled to identify such a method. One welcome outcome of the "national conversation" would be the development of a sensitive, informed project of public engagement, coupled with an appropriate way of measuring and utilising the results. Achieving this will require collaboration between people with a wide range of skills and, doubtless, moral attitudes.
• Sheila McLean is the International Bar Association Professor of Law and Ethics in Medicine at Glasgow University.