In September 2019, the Supreme Court of the UK ruled that Boris Johnson’s advice to the Queen to prorogue parliament for five weeks was unlawful. The president of the court, Baroness Hale, wrote, “…because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.”
The Court calmly, rationally and constructively reached its decision amid great and unrelenting political and media noise. Indeed, the judges themselves were subject to critical front page splash headlines, the most notorious being The Daily Mail’s “Enemies of the People.” The media clamour aside, the decision stood. In the end, it had little effect on Brexit – the issue that had brought the government to court in the first instance – but the court’s ruling did have the impact of chastising the government and was one of the key reasons that led to the Conservative party removing Johnson from Number 10. He had acted beyond his powers.
Not for the first time, the learned judges had added to the British constitution that there is a limit to what government can do to get what it wants.
Weakening liberal democracy
The judgment had another and perhaps more important consequence. The UK was reminded that the rule of law is sacrosanct. Boris Johnson and the media which gave him succour were careless of the law. They preferred that government and parliament had no checks and balances outside the walls of Westminster. What we witnessed was an attempt by a government with a big parliamentary majority to become an unassailable power, a full-blown elected dictatorship. The most obvious loser would have been parliament itself, whose sovereignty the Johnsonians had so recently called in aid over Brexit. Liberal democracy would have been weakened by grossly empowering the state. It would also have been a victory for media populism and for the strengthening of government by headline.
The Hate Crime and Public Order Act 2021
Now that the Hate Crime and Public Order (Scotland) Act has come into force, the lessons of September 2019 should inform Scotland’s debate around the new legislation.
The Act was passed by the Scottish Parliament in 2021 with 82 votes for, 32 against and 4 abstentions. It was first introduced in December 2020, submitted by Humza Yousaf and supported by Ash Reagan. The Bill in principle was agreed by a cross-party majority of 91. It then went through a long committee stage where amendments were made, before being debated and finally voted on by the full parliament.
A few weeks later, the Act received Royal Assent, though its implementation was delayed to allow the police time to prepare for its introduction, and for relevant IT to be introduced. The police have had since 2021 to get ready. That Police Scotland is now saying it is unprepared seems incredible. What were they doing all this time?
Act passed through all the proper channels
Those who oppose the Act – politicians, media, special interest groups and famous individuals, have had open access to the contents of the legislation for four years. The Act passed through all the proper channels of debate and scrutiny of the Scottish Parliament and had been introduced by a government with a clear majority of seats. No barriers were put in the way of any person or organisation with concerns about the measures. The lobbying of ministers and MSPs was no doubt intense but democracy took its course. The people’s Tribunes had done their duty. Democracy had been respected and all the proper processes of parliamentary scrutiny, rigorous analysis and the airing of a great range of views were exercised.
In the public prints read by most Scots no recognition is given to the proper and democratic passage of the Act. Populist journalism has once again raised its simplistic head. Columnists and editors who think of their publications as superior to the common tabloid herd are pulling out all the stops to position the Act as a danger to free speech. It’s certainly a danger to those who hate and express their hatred in a threatening or intimidatory way. That there are parts of the Bill lacking precision of meaning is certainly a concern, but almost all legislation has weaknesses of this nature. Lawmakers frequently leave it to the courts to decide the exact meaning of the law in a given set of circumstances. Not that tabloid Scotland cares much about such detail. They don’t do detail.
The law is not immune to criticism
The rule of law is sacrosanct. It is not immune to criticism. It is not beyond repeal. The mechanisms that made the ‘Hate Act’ are themselves the product of law and contained in the Scotland Act 1998. It gave the Scottish Parliament the power to make domestic law and it gave the Scottish people the power to elect the parliament, in order that it had the legitimacy of democracy at the very centre of its being.
The constant undermining of the Scottish Parliament by those who have always opposed it is both annoying and understandable. Undermining by those who championed its creation and used their power at Westminster to give it life is rather less palatable. Such is politics. It might though be a useful exercise for those people to remember that in 1997 74.29% of Scots voted for the parliament to be created.
Playing a dangerous game with democracy
Over the past three years, polls have shown consistently that around 50% of Scots favour independence. There’s one sure way of independence happening and that’s by the Westminster parties and their client media emasculating Holyrood, whether via Labour winning government at Westminster, while acting as a sub-office of London, or through the introduction of regional mayors or other devices disguised as progress but really meant to weaken the Scottish Parliament. They are playing a dangerous game with democracy. More fundamentally, they are playing a game with the deeply held conviction of the great majority of voters in Scotland that there not only should be a Scottish parliament but that it must have powers and high status and be treated with common courtesy by the other legislatures of these islands.
Despite the unarguable political legitimacy of the ‘Hate Act’ those who don’t like it are crying foul. Democracy has spoken, but democracy in Scotland is sometimes a poor opponent of the loud and the massed forces of the right-wing press and the Labour and Conservative parties in unholy alliance.
Why are they so loud now, when they could have been making cacophonous noise for years?
I think we all know. There’s a general election coming.
More articles by Martin Roche
