The Scottish Government’s far-reaching ‘conversion therapy’ plans amount to Holyrood overreach, a leading human rights lawyer has said.
In a legal opinion for The Christian Institute, Aidan O’Neill KC warned that the “fundamentally illiberal” proposals are “beyond the powers of the Scottish Parliament to legislate”.
Following his devastating critique of the Scottish Government’s plans to criminalise innocent parents and preachers, the Institute is preparing the ground for legal action.
The SNP-Green alliance is considering controversial plans to outlaw any activity – including parental chats, prayer and preaching – deemed to be an attempt to change a person’s sexuality or gender identity.
It appointed a so-called ‘Expert Group’ which made a series of recommendations – welcomed by the Scottish Government – for a new criminal offence.
But The Christian Institute criticised the report for criminalising the ordinary work of churches, promoting LGBT theology, targeting parental rights, and undermining free speech.
Now, Mr O’Neill has branded the recommendations “in breach of the restriction on the Scottish Parliament’s legislative competence” as set out in the Scotland Act 1998.
In his written opinion, Mr O’Neill stated: “The aim of the Expert Group’s proposals is to outlaw all and any religious pastoral care, or parental guidance, or advice or medical or other professional intervention relating to sexual orientation, expression of sexual orientation, gender identity and/or gender expression except that which is deemed by the State to constitute ‘affirmative care’.”
the undoubted effect of criminalising much mainstream pastoral work of churches
He explained that were the Scottish Government to adopt the Expert Group’s recommendations “this would have the undoubted effect of criminalising much mainstream pastoral work of churches”.
The KC continued: “Prayers and sermons would be criminalised if their content did not conform to the new State requirements only to affirm, validate and support the identity and lived experience expressed and stated by an individual”.
He added: “Indeed these proposals would also criminalise parents who lovingly and in good faith and in accordance with their own best judgment and conscience seek to caution their children in relation to any stated intention to embark on “gender affirmatory”/“gender transition” treatment”.
The Institute’s Simon Calvert warned that the Scottish Government is at risk of “inflicting the most totalitarian conversion therapy ban in the world on the people of Scotland.
“Church workers, feminist activists, mums and dads – all sorts of innocent people could find themselves on the wrong end of a prosecution if this becomes law.”
He also said: “LGBT people are rightly protected from physical and verbal abuse by existing law just like anyone else. But these proposals go much, much further.”
He concluded: “The Scottish Government and the Scottish Parliament must take Aidan O’Neill’s advice seriously. They may not like what Christians have to say about sexuality, or what feminists have to say about gender identity, but they can’t just criminalise opinions they don’t like.”
Mr O’Neill represented the Institute in its historic Supreme Court victory against the Scottish Government’s intrusive Named Person scheme in 2016.
The Court unanimously accepted his argument that the scheme breached Article 8 of the European Convention on Human Rights and was therefore beyond the legal competency of Holyrood.
The highly experienced KC says the same is true for the ‘conversion therapy’ proposals, which, in addition, contain measures which change UK equality and discrimination law, which is not devolved to the Scottish Parliament.
The media has created a sense of crisis around conversion therapy and a ban is very likely. The Christian Institute supports protecting people from dangerous medical practices. But activists want prayer, pastoral conversations, preaching and even parenting to be caught. This is a fast-moving issue. This leaflet covers key developments since our previous briefing in November 2020.
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