Scottish Govt on new collision course with courts

The Scottish Government is on a collision course with the courts again as it prepares legislation criminalising ‘conversion therapy’. Top KC Aidan O’Neill has warned that the proposals would be outside the legislative competence of the Scottish Parliament.

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.

They appointed a so-called ‘Expert Group’ which made a series of recommendations for a new criminal offence which it claims will be within Holyrood’s devolved powers. The Scottish Government welcomed the report.

But the Expert Group’s proposals have met with damning condemnation by a leading King’s Counsel who says the “fundamentally illiberal” proposals are “beyond the powers of the Scottish Parliament to legislate” and “in breach of the restriction on the Scottish Parliament’s legislative competence” as set out in the Scotland Act of 1998.

KC Aidan O’Neill has been called in by The Christian Institute. The charity previously engaged his services in 2016 to successfully have the Scottish Government’s hated named person scheme declared illegal for breaching the human rights of families.

In his new written opinion released today, O’Neill says the far-reaching ‘conversion therapy’ proposals would criminalise innocent parents and preachers. (Read a highlighted version of the full opinion or a summary and extracts.)

Simon Calvert, a Deputy Director at the CI, said his organisation is preparing the ground for legal action similar to the named person challenge.

He said:

“If the Scottish Government follows the advice of its Expert Advisory Group it will be exceeding its powers and inflicting the most totalitarian conversion therapy ban in the world.

“Mr O’Neill says the proposals would have the ‘undoubted effect of criminalising much mainstream pastoral work of churches, mosques and synagogues and temples’ and that ‘Prayers and sermons would be criminalised if their content did not conform to the new State requirements’. [See Para. 5.10 of the opinion]

“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. And I think Scottish taxpayers will eventually find themselves picking up the legal bill for another court defeat.

“LGBT people are rightly protected from physical and verbal abuse by existing law just like anyone else. But these proposals go much, much further. The Scottish Government is considering a law that could criminalise churches and gender-critical feminists alike simply because their conversations around sex and gender don’t conform to a narrow, state-approved brand of LGBT politics.

“We’re very concerned that the Expert Advisory Group is urging them to pass a law that would put the ordinary work of churches in the firing line.

“The report advocates a new criminal offence that does not require any proof or intention of harm. It will be illegal to say the ‘wrong thing’ even if it is totally harmless. Aidan O’Neill refers to this as a ‘strict liability’ offence where there is no need for any criminal intent in order to be found guilty.” [See Para. 5.4]

In his detailed and devastating 68-page legal opinion Mr O’Neill states:

“[A]ny such legislation would be in breach of the restriction on the Scottish Parliament’s legislative competence set out in [the Scotland Act 1998]”. [Para. 6.14]

His critique comes just weeks after the Scottish Government’s plans to legislate for a second independence referendum were thrown out by Supreme Court judges, who said Holyrood did not have the power to do so under the 1998 Act.

Explaining his opinion on the proposed conversion therapy legislation, the KC says it would contain measures which change UK equality and discrimination law, which is not devolved to Holyrood.

In addition, the KC says the legislation would breach the European Convention on Human Rights – specifically Article 8 which protects family life, Article 9 which guarantees freedom of religion, Article 10 which guarantees freedom of expression and Article 11 which guarantees the right to association.

Mr O’Neill says:

“The Expert Group’s recommendations undoubtedly involve proposals for radical changes in the current law and a marked expansion in the powers of the State; indeed they are fundamentally illiberal in intent.” [Para. 5.1]

“This is because in order to stigmatise and change what the Expert Group’s members clearly regard to be morally objectionable behaviours and attitudes (“conversion practices”) the Expert Group recommends a new use of, in particular, the criminal law.” [Para. 5.2]

“The Scottish authorities are called upon by the Expert Group to use the full weight of the State’s coercive powers of expropriation, incarceration and humiliation… against individuals and associations in Scotland deemed guilty – even at an individual’s request, or with their consent – of performing, offering, promoting, authorising, prescribing or arranging for any treatment, practice or effort that is deemed to be aimed at changing, suppressing and/or eliminating that person’s sexual orientation, gender identity and/or gender expression.” [Para. 5.3]

Outlining the dangers to parents and preachers Mr O’Neill explains:

“One effect (and the apparent intent) of the Expert Group’s recommendations would be to criminalise, among other things, the open expression of such orthodox traditional religious beliefs that sexual activity is only properly permissible within the bounds of an opposite sex marriage if said with a view to encouraging another to refrain from same-sex sexual behaviour. To fall foul of the law, it would need to be proved that the person intended the treatment, practice or effort that took place, but there would not be any requirement to show that harm was intended (or indeed that any actual harm resulted).” [Para. 5.8]

“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” in:

‘providing a safe space for someone to explore their sexual orientation, expression of sexual orientation, gender identity and/or gender expression in a safe and non-judgmental way; providing support and understanding in helping with self-acceptance; facilitating coping skills and social support or assisting someone who was undergoing or considering undergoing gender reassignment.’” [Para. 5.9]

“Were the Scottish Government to adopt the Expert Group’s recommendations and legislation were introduced and passed to give effect to them by the Scottish Parliament, this would have the undoubted effect of criminalising much mainstream pastoral work of churches, mosques and synagogues and temples.” [Para. 5.10]

“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 (but never to question or raise concerns about an individual’s expression of their sexuality, or their assertion of a “gender identity” or “gender expression” different from that associated with their birth sex).” [Para. 5.10]

“The recommendations if acted upon would also criminalise medical practitioners who express a professional opinion that it may not be in a patient’s best medical interest to undergo or undertake gender reassignment.” [Para. 5.11]

“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 in respect of their currently experienced discomfort or dysphoria in relation to their sex and/or sexuality. The giving of such parental advice might result, were the Expert Group’s recommendation to be followed into law, in these parents being deprived of their parental rights and/or their children removed from their care.” [Para. 5.12]

The KC points out that the proposals by the Expert Group include explosive threats to mums and dads such as:

“where the perpetrator of any of the Criminalised Acts has parental or guardianship rights in relation to the victim, the legal consequences may include the modification or withdrawal of such rights”. [See page 45 of the Group’s report.]

In response Mr O’Neill quotes [see Para. 3.63] from the named person ruling by the Supreme Court in which the judges stated:

“The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.”

The KC states:

“The recommendations of the Expert Group go far beyond a simple restatement or codification of the relevant law which might currently be prayed in this area. Instead, the recommendations seek to innovate upon and make substantial changes to the current law. Because of this, in my view, it would be beyond the powers of the Scottish Parliament to legislate along the terms recommended by the Expert Group.” [Para. 6.4]

He says the Supreme Court has made it clear in the past that any provision of legislation of the Scottish Parliament which even purports to make additional provision in the regulation of discrimination “will be not law as outside the Parliament’s legislative competence”. [Para. 6.12]

Mr Calvert said:

“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.

“MSPs on the Equalities Committee and, more recently, members of the Expert Advisory Group have all failed to engage properly with the repressive implications of their demands, and the limits on Holyrood’s powers. They are trying to persuade the Scottish Government to act unlawfully. Ministers and civil servants must listen to other voices or they are going to end up being defeated in the courts again.”

Notes for Editors:

• Read the full opinion (key sections highlighted by The Christian Institute).
• Read a summary and extracts.
• In January 2022 MSPs on the Equalities Committee made recommendations similar to the Scottish Government’s Expert Advisory Group.
• The Equalities Committee and the Expert Advisory Group both call on Scotland to follow the Australian State of Victoria’s controversial approach to banning conversion therapy.