Another session of the Scottish Parliament has ended without legislation being passed to tackle the glaring failure in our criminal law that has been well know to everyone for decades. It is a failure that is of course felt most acutely and heartbreakingly by those families who have lost a loved one to gross negligence or recklessness, particularly on the part of organisations, but who did not see justice done through a conviction for Culpable Homicide. It is a failure that puts us all at risk. It is a failure that if anything ought to be a priority for our politicians at Holyrood it is surely one. In fact, it ought to be at the very top of their list.
And yet, it is more than 15 years since Nicola Sturgeon, then in opposition, wrote a letter in support of changing the law. It is more than 15 years since John Swinney pledged his support to the cause. More than 15 years since Karen Gillon, MSP, introduced a Members Bill to change the law; a Members Bill proposal that for the first and last time in the history of the Scottish Parliament had a parliamentary majority sign their support to the proposal.
But, the Bill fell. As did the Member’s Bill introduced in a later parliamentary session by Richard Baker, MSP; and a further Members Bill introduced by Claire Baker, MSP, in the Parliamentary session that has just closed.
With the apparently clear political support for the change in the law it must appear inconceivable that the law has not changed and that the Parliament has rejected 3 different Members Bills on this important subject.
But, for my part, as someone who has worked with campaigners who have fought for this cause (families who hold the themselves with such dignity and whose only purpose is to ensure others do not suffer as they have, trades unions and charities) my entire professional career and who has lobbied our political leaders exhaustively on this incredibly important issue, I am quite clear about what has gone wrong and, most importantly, what the next Parliament must do.
The problem starts with words. Words whispered in the ears of Ministers and Cabinet Secretaries by naturally conservative, with a small ‘c’ (I hope) civil servants. Two words in particular, “legislative competency”. In my experience of the Scottish Parliament these words only ever have one of two responses. They will either strike fear into the heart of the lead minister and the Bill will be consigned to history books; or they will inspire an indigent and dogged determination to do the right thing and the Bill will drive through Parliament and on to the statute book.
There are many examples of the Scottish Government showing a fearless determination to push at the boundaries of legislative competence and press on with Bills where they knew a legal challenge was possible and indeed probable but where it was the right thing to change the law. Those examples include the Smoking Ban, the EU Withdrawal Bill, the Plural Plaques Act and, most recently, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.
Indeed, in relation to the Rights of the Child Bill, John Swinney boldly tweeted to the UK Government that he “would see you in court”. Meanwhile Nicola Sturgeon described any challenge to the Bill on the basis of legislative competence as “morally repugnant”.
That is exactly the bold, right minded and committed attitude that Nicola Sturgeon, John Swinney and the entire Scottish Parliament must bring to the cause for the change of the law on Culpable and Corporate Homicide. They must ignore the words of the cautious civil servants. They must be true to their own words in support of the campaign.
And they must take action.
They must introduce legalisation. They must show the power of their convictions and see the draft legislation into law; facing down any legal challenge that may come their way. If a legal challenge was successful they, and indeed we as a nation, can look the families and campaigners in the eye and say that we did all that we could. But if they refuse take action for fear of possibly failing that would represent an abrogation of their responsibilities.
That is the gauntlet that we lay before every MSP of every party elected to Parliament on the 6th of May.
Blog by Patrick McGuire, Partner