On 26 January 2022, the EHRC wrote to the Scottish Government setting out its position on GRA reform. The letter followed on from a meeting between the Commission and Ministers a few days earlier. The Commission raised a number of concerns about the Scottish Government’s proposals and stated: ‘we consider that more detailed consideration is needed before any change is made to the provisions in the Act’.
Instead of pausing to undertake the due diligence advised by the EHRC, the Sunday Times has however now reported that “ministers intend to press ahead to get a new law through parliament by the summer.” If accurate, this is a remarkable development. It would mean that the Scottish Government intends to expedite the legislative process, and are assuming the Parliament will agree to an exceptionally fast bill timetable.
The passage of government bills: 2016-2021
Looking at the timing of Bills passed in the last parliamentary session (2016 to 2021) shows just how unusual this would be. In recent years Bills have usually taken at least seven months, and more commonly nine months or more, from introduction to the end of Stage 3 and the completion of all parliamentary stages. The Scottish Parliament passed over fifty government bills between 2016 and 2021 (excluding special cases of budget and covid bills). Of these, only two appear to have taken less than seven months to complete the parliamentary process, and only one to have been completed in as little as five months (comprising 16 sitting weeks). The latter was subject to a special expedited scrutiny process, at the Minister’s request, as ‘a series of small fixes’ regarded as urgently needed to the social security system.
There are 17 sitting weeks left before the summer, as of today. There are 16 sitting weeks from 24 February, a date previously trailed for introduction.
Limiting the opportunity for parliamentary scrutiny
In the context of GRA reform, the significance of an expedited parliamentary process cannot be overstated. As we have written previously (here and here) it is clear that the Scottish Government has not done the work to address the substantive concerns raised in the consultations and by the EHRC, and that even at this late stage, does not fully understand the nature of the reform that it is proposing. Instead, it is passing this burden to MSPs, who will be faced with compensating for an unfair, unreasonable and demonstrably biased process. Yet if the parliamentary timetable is compressed, the opportunities for MSPs to do so will invariably be limited. The time available to scrutinise what are highly controversial proposals will be reduced and detailed discussion on the Bill restricted. This has already happened in some other jurisdictions, where self-declaration has been legislated for, as discussed in this paper:
This includes Ireland, where as described in this guest blog, the legislation was moved from a medically-based model to self-declaration, through amendments made in the final weeks of the Bill scrutiny process.
We hope that the comments reported in the Sunday Times do not accurately reflect the government’s plans. If they are accurate, we think that a shortened timetable is likely to further damage trust in the process and aggravate what is an already highly charged atmosphere. As the Commission noted in its correspondence with the Scottish Government:
Like you, we are concerned at the polarised debate on this issue. It is causing much distress to people on all sides. We want to work with you and other interested parties to support a careful and respectful discussion of potential changes to the lawEHRC 26 January 2022