Holyrood 'has harmed' Scots law
- 29 August 2012
- From the section Glasgow & West Scotland
The Scottish Parliament has been accused of doing more harm to the independent Scots legal system than Westminster managed in 300 years.
In an article in The Times, a leading legal commentator says legislation has often been passed to satisfy tabloid newspapers' agendas.
Solicitor-advocate Alistair Bonnington said huge damage had been done to Scots law by the Holyrood Parliament.
He said long-held beliefs on the right to a fair trial had been dumped.
Mr Bonnington, a former honorary professor of law at Glasgow University, cites the ending of double jeopardy - where an accused person cannot be tried twice for the same offence - as one example.
Paradox and tragedy
And he argues that proposals to end the need for corroboration and also allow juries to be told the previous convictions of a person in the dock represent "the destruction of two of the gold standards of Scots criminal law".
Mr Bonnington writes: "From the Union of 1707 until the present day, Scots law has managed to continue to exist, and sometimes even thrive, as an independent legal system within the UK.
"It is one of the main things which has made Scotland different. Indeed, without Scots law, the claim to have distinct nation status would be absurd."
He continued: "It is a paradox and a tragedy that since 1999 huge damage has been done to it by the Scottish Parliament.
"Sadly it is not going too far to say that Holyrood has done more harm to Scots law than Westminster managed in over 300 years."
He is particularly critical of MSPs passing legislation to make criminal offences which have been illegal under Common Law since the Middle Ages.
Examples are the recent enactment of sectarian aggravation of breach of the peace and anti-stalking legislation.
"The approach of the Scottish Parliament often seems to be to legislate in accordance with the agenda of tabloid newspapers," he said.
"This, instead of creating laws for public benefit."
His criticisms have been supported by Anne Ritchie, vice-president of Glasgow Bar Association.
She said such legislation was passed in reaction to an event - but ultimately it was not satisfactory.
"In any crime, there are a number of people affected, including victims and their families," she said.
"Passing legislation afterwards, however well-meaning, doesn't affect their lives or undo the harm they have suffered."
In a statement, the Scottish government said it agreed law reform must be properly considered and researched.
"Reform of the law on double jeopardy followed a detailed assessment by the independent Scottish Law Commission and a government consultation exercise," the statement said.
"The principle against multiple trials has not been abolished. As in England and Wales and other jurisdictions, a limited exception has been created to allow a new trial only where new evidence with a significant impact emerges following the first trial."