Allan Massie: New laws are marriage of good, bad and ugly
THE SNP wants to bring in same-sex weddings, ditch admired parts of Scots criminal law and state its intent with a referendum bill.
Administration, not legislation, is the real business of government. Nevertheless, governments feel obliged to have a legislative programme and pass new laws, not all of which are necessary and some of which are always ill-drafted, requiring future amendment. It’s a way of looking busy and of keeping parliamentarians occupied. Few of the laws are important, and some of those that are important matter only to a few people.
Two pieces of the legislative programme announced by Alex Salmond yesterday have been well-trailed and have already provoked much public discussion. One of the measures is of general importance, the other is not. The first is the Referendum Bill, the second is the bill that will permit gay and lesbian couples to marry.
The Referendum Bill is, at this stage, little more than a statement of intent. It can’t be more than that, for two reasons. First, for the referendum to be legal – by which I mean not open to a challenge in the courts – Westminster must also pass what is called a Section 30, ceding the authority to stage a referendum to the Scottish Parliament.
The SNP believes that the Scottish Parliament already possesses the moral authority to hold the referendum, because the promise to do so was made in its 2011 election manifesto, and the Scottish electorate knew this when it gave the SNP its majority. This is true. Nevertheless, Mr Salmond knows that the Scotland Act (which he voted for as an MP), which brought the Scottish Parliament into being and detailed its powers, reserved constitutional affairs to Westminster.
Second, Westminster will not grant the Scottish Parliament the legal authority until the wording of the question on the referendum paper has been agreed by both the UK and Scottish Governments.
It is probable that David Cameron will hold out for a single question – independence, yes or no – and he will be right to do so. This doesn’t mean further devolution won’t happen, but the extent and terms of further devolution can’t be a matter for Scotland alone because any change will affect the other parts of the UK. If we don’t like to recognise this, we should vote for independence. We can choose to secede from the United Kingdom, but if we prefer to remain part of the UK, then the future terms of our membership must be agreeable to the English, Welsh and Northern Irish. This means that further measures of devolution cannot be determined by either the Scottish people or the Scottish Parliament alone.
The same-sex marriage bill is a very different thing. Despite all the argument that the proposal has provoked, this is something which will affect only a very small number of people. It matters to them, but it scarcely matters at all to others, however vociferously they may express their opinion. gay and lesbian couples may already contract civil partnerships. Giving them the right to go through a marriage ceremony is only a small step further.
The proposed bill will make it clear that no religious body will be required to perform such a ceremony or will be liable to any legal action for declining to do so.
To hear Cardinal Keith O’Brien and others who fulminate against the proposed law, you would think it means the end of civilization. Well, civilization must have already ended in countries that permit gay marriage, some of them Catholic countries, such as Spain, Portugal and Belgium, though I doubt if anyone has noticed it. Cardinal O‘Brien speaks of the threat to traditional marriage, but the real threat to marriage is the ease and frequency of divorce, or indeed the reluctance of co-habiting couples to tie the knot.
Most of the 15 bills are either uncontroversial (such as the intention to ensure that all pre-school children can get 600 hours of early learning or childcare), tidying up measures or unnecessary, such as the procurement bill – intended “to place emphasis on managing public spending”, this being , one would have thought, a purely administrative problem.
One is quite important: the bill to replace Stamp Duty and provide for a Landfill Tax, these being extensions to the parliament’s powers resulting from the recommendations of the Calman Commission, which Westminster approved in the new Scotland Act.
Another, to integrate health and social care, is important, but we shall have to wait to see just what is proposed, what the responsibilities of local authorities will be, and how they will co-operate with health boards. It is likely that implementation of this bill will prove difficult, and it is quite possible that the integration, while perhaps desirable in theory, will cause as many problems as it solves.
The Criminal Justice Bill is both important and controversial. We are told that it will follow the recommendations of the panel chaired by Lord Carloway. These include the removal of “double jeopardy”, a reform that would permit someone acquitted of a crime to be tried a second time on the same charge. This reform will bring Scots law into line with the law in England and Wales, no doubt an example of Mr Salmond’s “Social Union” in action.
The requirement for corroboration in a criminal trial has also been recommended for abolition. One trusts this proposal will be fiercely challenged in parliament. While removing the need for corroboration will make it easier to secure a verdict of guilty, it will also make the conviction of the innocent more probable. The requirement that, as Professor David Walker wrote in his Legal History of Scotland, “every substantial statement by a witness had to be corroborated by other evidence before it could be accepted as establishing the fact in issue”, has been a principle of Scots Law since at least the 17th century. It may be convenient to get rid of it, but what is convenient might not be right.
Can the SNP really be intending to tamper with such a distinctive and admirable feature of Scots law?
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