New research confirms Democratic Deficit at Holyrood

Legislation on constitutional matters must be subject to referendum

The Edinburgh Evening News published a shorter version of this article in its April 18th edition entitled, “New law needs a referendum”. In the letter, I asked people to turn up to the April 23rd public debate at Holyrood.

New research on the Victims, Witnesses and Justice Reform (Scotland) Bill shows the Scottish Government failed to engage with the general public during the consultation process before the Bill was published in 2023. This means that the Policy Memorandum which accompanied the draft bill was misleading. Scotland’s Democratic Deficit is alive and kicking.

The research also reveals that Parliament’s Criminal Justice Committee (CJC), probably unknowingly, ignored the red flag waved by ScotGov’s own independent consultants and therefore repeated the misleading information in its own report. Following established practice, CJC also failed to consult the general public, so it’s likely that it has drawn wrong conclusions about public opinion from the results of its own call for views.

It's important to note the research examined the consultation on the Not Proven verdict, but the same conclusions probably also apply to the Bill’s Juryless Trials proposal.

The Democratic Deficit was confirmed when CJC decided not to call as witness the Scottish National Congress Steering Committee (SNC) who, in its response, had strongly objected to the Juryless Trials and Not Proven verdict proposals since they relate to constitutional matters and should therefore be subject to Referendum. We even have the legislation to hold it - the Referendums (Scotland) Act 2020!

However, there’s a problem - a referendum on any devolved matter has to be triggered by a parliamentary majority. That means it has to be specifically referred to in the Act when parliament approves it, which is why we’ve asked you to write to your MSPs prior to the April 23rd public debate asking them to insert the words ‘subject to referendum’. If together we can exceed the 262 responses (114 from individuals) received by the CJC and the 179 individual responses received by the Scottish Government, then they MUST listen to the People!

Lead researcher Henry Ferguson commented, “In Switzerland, where I live and vote, this Bill would be known as “Bad Law.” The constitutional aspects don’t appear to have broad public support - and these elements would probably never even have been presented by Government to Parliament. If they had been presented to and approved by Parliament, there would have been a Mandatory Referendum and the Bill would quite possibly have been rejected by the People.”

Because the wider general public was not consulted, Ferguson contends that the consultation analyses of ScotGov and the Criminal Justice Committee are fundamentally flawed. Holding a referendum would correct this flaw by taking into account the views of the Scottish People.

Ferguson also discovered that ScotGov ignored the same red flag about the extent of consultation of the wider Scottish general public in the case of the Gender Recognition Reform Act.

Normalising the holding of referendums in Scotland could chart a pathway to independence.

Here’s the research report - please share it with your MSPs:

This research paper describes the main stages of the above Bill with respect to the Not Proven verdict, starting with Government’s analysis of its consultation results until issuance of the Stage 1 report by the Criminal Justice Committee of Parliament (CJC) on 29 th March 2024.

1. Government Consultation Analysis

The Government consultation analysis, published by the Justice Directorate on 12th July 2022, was outsourced to the consulting firm Why Research. On page 1 of the Executive Summary, the consultants warned against jumping to conclusions about public opinion (referred to below as the “Red Flag”):

“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.”

179 individuals and 21 organisations replied to the consultation and therefore, by definition, all the conclusions drawn are based only on the replies of these respondents without taking account of the views of the wider Scottish population. As the consultants pointed out, drawing conclusions about the general public based on a self-selected sample of only 179 individuals is fundamentally incorrect.

2. Government Policy Memorandum

The consultants’ Red Flag is not repeated in the 25th April 2023 Policy Memorandum which accompanied introduction of the Bill and, without caveat, it provided detailed analyses based only on the above self-selected sample. The Introduction section of the Memorandum states (Art 52):

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

This statement is not even misleading - it’s wrong. The only engagement with the general public was with the 179 individuals mentioned above.

On the Not Proven verdict it’s stated, “62% of respondents supported changing to a two-verdict system” (Art 57). The 62% calculation is not detailed so it’s not possible to know the applicable percentage for individuals. In any event, in view of the Red Flag, it’s fundamentally incorrect to assimilate the responses of the 179 individuals to the wider general public.

3. Stage 1 Report of CJC to Parliament

The consultants’ Red Flag is not repeated in the CJC Report which is therefore based on incorrect information provided by Government about the wider population. Nevertheless, in its own report, CJC summarised the Government findings on the Not Proven verdict as follows (Art 522):

“The Policy Memorandum argued that the evidence to support abolition was “overwhelming””.

Although this statement may well be true for other categories of respondents, it most certainly is not true with respect to the wider general public as described above.

CJC undertook its own call for views and, as with the Policy Memorandum, no mention was made in its report of the Red Flag. The call for views received 262 responses, of which 114 from individuals, and all CJC’s conclusions were therefore based only on these responses. No account was taken of the views of the wider general public and one responder on its behalf, the Scottish National Congress Steering Committee, which requested a referendum, was not called as witness by CJC. In the context of Scottish Popular Sovereignty, the CJC report to Parliament is therefore fundamentally flawed.

(s) Henry B. Ferguson CA, CGMA (retired) 15th April, 2024

Sion, Switzerland