Adam Tomkins: If neither the courts nor Parliament stop bad policy, people will take the law into their own hands

Consider the facts. In July, John Swinney said vaccine passports were the “wrong way” to go. He was echoing his Cabinet colleague Humza Yousaf, who had spoken of his “ethical, clinical and human rights concerns” about vaccine passports. And then, abruptly, at the beginning of September the Scottish Government u-turned. Nothing wrong with that. Governments around the world have been feeling their way out of this pandemic, making mistakes and wrong turns all over the shop. It’s not easy, governing.

As September unfolded, however, this particular u-turn looked ever more mistaken – to the point that, now, with Parliament unwilling to face up to the consequences and with the courts choosing to look the other way, people have no choice but to take the law into their own hands and ignore it. The app is riddled with errors. Football clubs are refusing to turn fans away. Nightclubs are seeking to take the government to court. Ministers have announced that, even though the policy became law last week, no one will enforce it until the middle of the month at the earliest. Rapidly, the law is becoming a joke. An ass.

To make matters worse, consider finally this: the Government now says that the purpose of vaccine passports is to drive up vaccination rates among the groups in our population where it is lowest. Yet there is precisely zero evidence that this will work – none at all – and, at the same time, the drop-in vaccination centres in hubs such as Glasgow have just closed. You couldn’t make this stuff up if you tried.

This farce of a saga is a compound story of three failures. A failure of policy (which is the Scottish Government’s fault). A failure of accountability (which is the Scottish Parliament’s fault). And a failure of judicial nerve (which is the courts’ fault). We now have a choice. We can either learn the lessons and remedy the failures. Or we can watch in wonder as our law descends into chaos and becomes, in Shakespeare’s words, “more mock’d than fear’d”.

It’s not that vaccine passports are necessarily a bad idea in themselves. But trying to rush their implementation when you have spent months – literally, months – telling everyone that we are not going anywhere near them is lunacy. Imagine 50,000 people with tickets trying to get inside Ibrox or Celtic Park. Who is going to do the job of allowing in only those who are either double vaxxed or exempt? And how are they going to do it without causing a stampede or a lethal crush?

Now, imagine instead that the Scottish ministers had warned football clubs when season tickets went on sale several months ago that matches with more than 10,000 fans would likely be subject to rules about vaccine passports. Selling tickets only to those with the right accreditation is a lot easier than keeping out fans who have faithfully bought tickets, only to find their ticket cannot get them through the turnstile. This failure is on the government—and it’s an elementary failure of planning.

Parliament has tried to put the brakes on, but to no avail. Reading last week’s debate it’s clear who won the argument. Labour and Lib Dem MSPs made the best speeches, with calmness and reason and argument and fact. The Tories went for the jugular and, as so often in their over-excitement, missed. But it did not matter. The SNP/Green coalition was listening neither to Tory hyperbole nor to Labour/LD reason. They have the numbers to vote this nonsense through, and vote it through they did. Read the risible speeches of Messrs Swinney and Yousaf in vain, though, for any reason why. (As a recovering ex-MSP I am so glad I no longer have to waste my afternoons listening to this guff.)

Which brings me to the courts. The petition for judicial review, brought by the Night-time Industries Association, fell at the first fence. Perfectly solid legal arguments were made as to why the policy, and the chaotic means of its introduction, were unfair, discriminatory, arbitrary, irrational, unreasonable, and disproportionate. The arguments were backed by evidence and looked sound to me. But the court simply did not want to know. For the judge, these were matters of political judgement for Parliament and government, not matters of law. And so he washed his hands of it all, and threw the case out.

So be it. When our institutions fail us – as they have, all of them, here – we have no choice but to take the law into our own hands. Not so very long ago, this was positively celebrated by the likes of Mr Swinney and Mr Yousaf. Remember that time, earlier this year, when Home Office officials were effectively stopped from doing their job of removing illegal immigrants from a residence in Kenmure Street, Pollokshields? Popular resistance to unpopular immigration laws, which did not carry the consent of the governed (not on that street, at any rate) rendered the law unenforceable, and this was celebrated by Scottish ministers looking to make an example of the Home Office.

The boot’s on the other foot now, isn’t it? This time it is the rules of this SNP/Green administration that have come, in those chilling words, to be more mock’d than fear’d. It is they who are making “a scarecrow of the law”, as Shakespeare puts it in Measure for Measure. Laws made by such proud men, “dress’d in a little brief authority” can lead to only one conclusion, in which:

“Liberty plucks Justice by the nose,

The baby beats the nurse, and quite athwart

Goes all decorum.”

Someone needs to get a grip. At this point I no longer much care whether it is ministers who belatedly see reason, whether it is Parliament that forces some sort of miraculous about-turn, or whether it is an appeal court that brings this madcap scheme to a judicious end. Because the consequences of collective, serial, institutional failure are severe. Those who trumpet the mass disobedience of the laws should be careful what they wish for.

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The Herald Scotland

The Herald is a Scottish broadsheet newspaper founded in 1783. The Herald is the longest running national newspaper in the world and is the eighth oldest daily paper in the world. The title was simplified from The Glasgow Herald in 1992