A futile consultation on a constitutional change

The Scottish Government has bypassed the People in its "Juryless Trial" bill

Henry Ferguson continues with his analysis of the “Juryless Trial” bill, looking at the provision to abolish the uniquely Scottish “not proven” verdict. The Scottish Government has deliberately failed to consult the sovereign Scottish People on this proposed constitutional change, perhaps knowing that if they did, the People would reject it. Under a system of popular sovereignty, any proposed constitutional change must be subject to a Mandatory Referendum.

That’s the key issue. Parliament’s failure to incorporate Political Rights into legislation means it’s a colonial administration that operates on the principle of English parliamentary sovereignty, not Scottish Popular Sovereignty. We, the Scottish People, have an opportunity to make our views known to MSPs before and during the April 23rd public Parliamentary debate.

The Criminal Justice Committee’s (CJC) report on the Victims, Witnesses, & Justice Reform (Scotland) Bill was issued last Friday, 29^th March, and the public Parliamentary debate is scheduled for 23^rd April from 2pm. If the People choose, this occasion could be the first step in a series of debates about Popular Sovereignty (Direct Democracy (DD) or Decentralised Direct Democracy (DDD)) and I hope that, between now and then, the People will be making their views known to their MSPs.

Popular Sovereignty on trial

Last week I asked whether Popular Sovereignty was on trial. Today I’ll explain why it is. I speculated that the trial would be unfair and the next three weeks will confirm whether or not I’m right.

I’m going to look specifically at the Not Proven verdict, then I hope to move on to the proposed pilot of juryless trials for rape cases.

Executive Summary

Here’s what the CJC report is saying: “We think the Prosecutor (ScotGov) is probably right in his view that the Not Proven verdict is past its sell by date but we’re not absolutely sure. The proposals to change jury size and majority are Not Proven (!). To help us sleep at night we suggest a report on the abolition of the Not Proven verdict should be submitted to Parliament in due course.”

I believe the CJC conclusions are flawed because: (i) ScotGov and the CJC have both ignored a significant red flag from the Justice Directorate not to extrapolate conclusions beyond the respondent sample, (ii) contrary to Scotland’s constitutional basis of Popular Sovereignty, the views of the millions of non-responding citizens have not been taken into account, and (iii) the report to be submitted to Parliament “in due course” can only be inconclusive because jury directions on rape myths and requirements in relation to corroboration were introduced only in September and October 2023, respectively - and are now in effect - and it will be impossible to draw sensible conclusions on abolishment until well after it has already taken place!

Chronology of events

Here’s how the Not Proven aspects of the Bill have evolved over the last two years:

The Justice Directorate

The “Public Consultation on the Not Proven Verdict and Related Reforms” was launched on 13th December 2021 and ran until 11th March 2022. On 12^th July 2022 the Justice Directorate of the Scottish Government (JDSG - the Independent Expert in my virtual trial) - published “The Not Proven Verdict and Related Reforms: Analysis of Responses to Consultation” and in the Executive Summary (Respondent Profile) it’s stated:

“While the consultation gave all who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, any figures quoted here cannot be extrapolated to a wider population outwith the respondent sample”.

There were only 200 responses to the ScotGov consultation, of which 21 were from organisations and 179 from individuals, and what JDSG is saying above is that the entire Scottish population, except those underlying the 200 responses, has not been consulted.  So any figures quoted in the JDSG report, notably percentages in favour of abolishing Not Proven, apply ONLY to the 21/179 responding groups but NOT to the population as a whole.

The Scottish Government

On 25^th April 2023, the Scottish Government (the Prosecutor in my imaginary court case) introduced the Bill together with a Policy Memorandum which sets out ScotGov’s policy behind the Bill. In the Policy Memorandum the Prosecutor states:

“The Bill content is the product of significant engagement with victims, witnesses, justice stakeholders and the general public”.

Taking account of the Independent Expert’s comment above, the term “significant engagement with….the general public”is stretching a point because it can ONLY apply to the 179 individual responses. Therefore, the Policy Memorandum text is highly misleading.

The Criminal Justice Committee

On 19th June last year, the Criminal Justice Committee of the Scottish Parliament (CJC - my imaginary Judge) issued a call for views asking for comments on the Prosecution’s case and in total there were 208 individual responses and 54 from organisations. On 5^th September, the Accused (the Scottish National Congress Steering Committee (SNC) acting on behalf of the Scottish People) submitted written comments in which it requested a national Mandatory Referendum because constitutional matters were involved.

And last Friday 29^th March, the Judge issued his Stage 1 report to Parliament, and the Jury (the 130 MSPs sitting in parliamentary debate) will hold its first public meeting at Holyrood on 23^rd April.  I have two comments on the CJC’s report:

·      It states: “The Policy Memorandum argued that the evidence to support abolition was “overwhelming.” However, CJC forgot to mention (i) the JDSG red flag about drawing inappropriate conclusions from the ScotGov consultation, and (ii) the vast majority of the Scottish electorate was therefore ignored, contrary to any notion of Popular Sovereignty.

·      The same criticism can be levelled at the CJC itself - only 208 individuals responded to its call for views, and it’s wrong to extrapolate the opinions of that sample to the entire general public which it must have done when considering the results of its own survey.

The Judge’s instruction to the Jury implicitly confirms that the Popular Sovereignty trial will be unfair and, as it unfolds over the next few weeks and months of parliamentary process and debates, it is more than possible that MSPs and the Scottish People will be drawn into a fundamental debate about what kind of Democracy Scotland wants with respect to devolved matters: Scottish Popular Sovereignty (DD / DDD)) or English Parliamentary Sovereignty?

Here’s the question:  Is the Scottish Government ready to live up to the UK’s international Human Rights commitments - specifically Political Rights - with respect to devolved matters?

While readers and, hopefully MSPs, are contemplating that question, let’s consider what the Judge really said in his instructions to the Jury.

CJC Conclusions

My adaptation above may seem provocative, so I’ll let readers judge for themselves - here are the CJC’s word-for-word conclusions and recommendations on the Government’s proposal to abolish the Not Proven verdict:

·      “Firstly, we believe that the not proven verdict should be abolished and we support this provision in the Bill.

·      Overall, then, we recommend that should the Scottish Government proceed with the abolition of the not proven verdict we cannot support the proposed changes to jury size and majority because we have not heard compelling evidence to support this.

·      The Scottish Government and other relevant bodies must work closely with academics and others to collect data on the abolition of not proven and provide a report to Parliament in due course on the impact.”

In the discussion section of the report, CJC explains its reasoning for suppression: “On the balance of evidence, having heard arguments for and against, we believe the not proven verdict has had its day and should be abolished.”

I don’t believe this conclusion is sound (“has had its day” is a dubious justification for suppression of a constitutional principle), particularly because abolishment will probably have happened by the time the required report on abolishment is submitted to Parliament.

Consultation of the General Public

SNC pointed out that suppressing the Not Proven verdict and introducing juryless trials were constitutional issues and in accordance with generally accepted international practice, should be the object of a national referendum - referred to internationally as a “Mandatory Referendum” - which would allow the People to accept or reject Parliament’s proposal (As noted last week, ScotGov has already accepted this principle when it stated, in June 2023: “A constitution….should not be vulnerable to change at the whim of the government of the day or of a simple majority in parliament.”).

Many countries - excluding the UK and Scotland - have what are called Political Rights, of which the Mandatory Referendum is usually the first pillar (two other ones being the Optional Referendum and the Popular Initiative).  As mentioned in my previous article, Art 25 of the International Covenant on Civil and Political Rights, signed by the UK in 1976, gives every citizen the right to participate directly in public affairs and, in the context of Scotland’s Popular Sovereignty, that means the right to launch and participate in Initiatives and Referendums.  Readers should therefore be aware that, in the case of the Not Proven verdict (the only aspect of the Bill I’ve so far looked at), the SNC request for a Mandatory Referendum meets international standards with respect to Political Rights and is entirely justified.

A last thought…

Interestingly, the fact that SNC was not called by the Judge as a witness confirms that the People have knowingly been excluded from the decision-making process. I wonder if this is not the case with ALL consultations and calls for views organised by the Scottish Government and Parliament, respectively.  The People should closely watch this point in the future - particularly with respect to what we in Switzerland refer to as proposed “Bad law” (i.e. controversial Government/Parliament proposals lacking broad public support).

As my trial scenario develops, it’s becoming clearer that Popular Sovereignty is under attack in Scotland and, assuming they don’t like this, the Scottish People need to start pressuring their MSPs in innovative ways.  I believe that’s where DD & DDD come in because the most consensual formula for Popular Sovereignty that I’m aware of - in Switzerland where I’ve lived for 50 years - is as follows:

People+Regions > Government+Parliament.

In other words, over time, the People and Regions, working together, always have the last word.

Henry B. Ferguson

Sion, Switzerland