I confess that when I first heard of the plan to have the Scottish Parliament designated a ‘protected site’ under section 129 of the British Serious Organised Crime and Police Act 2005 (SOCP 2005 s129) I was not particularly troubled. My first thought was that this would have no practical implications for demonstrations (why do people insist on referring to ‘protests’?) at Holyrood. I regarded the fuss some were making as ill-informed hyperbole. I was correct on both counts. Nonetheless, I am not now as relaxed about the measure as I was initially.
I rarely content myself with first reactions. So I decided to find out what SOCP 2005 s129 actually stipulates.
A person commits an offence if he enters, or is on, any protected Scottish site without lawful authority.
Needless to say, alarm bells started to sound. This just seems wrong. How can it possibly be unlawful for any citizen of Scotland to be in the precincts of our Parliament? This seems totally at odds with the prevailing culture in Scotland where political engagement and activism are part of daily life. Unsurprisingly given that Holyrood rather than Westminster is now regarded as the locus of Scottish politics, it is the favoured site for demonstrations addressed to the Scottish Government. It’s where we go when we want to send a message to our elected representative. It’s where we go to “peeble them wi’ stanes” – metaphorically, of course. The people of Scotland being sovereign, the notion that we could be prohibited from getting within peeblin’ distance of our Parliament seems jarringly counter-intuitive, to say the least.
The character Sir Walter Scott had refer to the peeblin’ of politicians also said “naebody’s nails can reach the length o’ Lunnon”. This measure threatens to put Holyrood as far out of nails’ reach as Westminster. The fact that British legislation was invoked to achieve this naturally rankles. But it also explains. Westminster is placed out of nails’ reach of the people because the English tradition adheres to the principle of parliamentary sovereignty. A concept that is totally incompatible with the principle of popular sovereignty which arguably more than anything else characterises Scotland’s distinctive political culture. Here we have law enacted by a parliament we did not elect being used to drastically alter our relationship with our Parliament. This cannot be right. This is just plain wrong.
Studying the legislation had started me thinking differently about what was being presented as nothing more than a bit of administrative tinkering. But it was an article in The National written by Scott Crichton Styles, a Senior Lecturer in Law at the University of Aberdeen, which solidified my opposition to the measure (‘Morally wrong’: Legal expert picks apart plans to restrict protests at Holyrood). The article confirmed my interpretation of the legislation.
The effect of designating Holyrood as a “protected site” is to presumptively criminalise everyone who sets foot on the site.
So I wasn’t overreacting. The people railing against the change in the status of the Scottish Parliament were right to do so, even if they were doing it for the wrong reasons. They were getting worked up about a ban on protests which is entirely imaginary and missing the point that the implications of designating Holyrood a protected site are far, far worse than even a real prohibition against demonstrations. As Scott Crichton Styles says,
Surely there should be a presumption that visiting Parliament for most reasons, including protesting, is a lawful activity? Why should citizens need to prove they have lawful authority to protest outside their Parliament? But this legislation creates a presumption that a person on the site may be guilty of an offence! This emphasis is morally and politically wrong.
That’s it in a nutshell. Designation of the Scottish Parliament as a ‘protected site’ under the Serious Organised Crime and Police Act 2005 s. 129 fundamentally changes the nature of the relationship between the people of Scotland and our Parliament. It undermines the principle that the people of Scotland are sovereign and transplants the alien concept of parliamentary sovereignty. It works towards bringing the most potent symbol and instrument of Scotland’s democracy into conformity with the political culture held as a tenet of British Nationalist ideology – the political culture of England-as-Britain. It is insidious Britification of Scotland’s democratic infrastructure and it must be resisted.
So potentially effective is this in furthering the aims of a British Nationalist ideology that is anathema to the overwhelming majority of people in Scotland that one is inevitable led to wonder if this was the intention. I think it more likely that it is something the SPCB has blundered into without realising the implications. Perhaps having the property for which they are responsible designated a protected site made them feel more important. Who knows? We know nothing of the thinking – if any – behind applying to the British Home Secretary for this designation because it was all done in secret. It would certainly be interesting to know who or what prompted the move. Someone must have instigated the process.
Scott Crichton Styles writes,
There are two deeply unsatisfactory aspects to the process by which the protected site request was made. Firstly, it seems to have been made in secret by the SPBC without any consultation of MSPs.
Secondly, and fundamentally, to rely on the British Serious Organised Crime and Police Act 2005 is completely unnecessary. If the SPBC think that the existing legal protections of the Holyrood are inadequate they could have proposed a bill to the Scottish Parliament to remedy that gap.
The phrase “deeply unsatisfactory” is buckling under the weight of the load it’s being made to carry here. The situation is a great deal more than deeply unsatisfactory. It is intolerable! It is totally unacceptable! This must not be allowed to stand!
It is incumbent on every Member of the Scottish Parliament to maintain the integrity of the Parliament, defend the sovereignty of Scotland’s people and protect the relationship between the people and their Parliament. Designation of the Scottish Parliament as a ‘protected site’ under the Serious Organised Crime and Police Act 2005 s. 129 comes as a threat to that relationship that few anticipated and almost as few recognise even now. The Order so designating the Scottish Parliament must be revoked immediately.
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