KC finds Scottish government’s conversion therapy proposals draconian

Double silk Aidan O’Neill KC has warned that the proposals would be outside the legislative competence of the Scottish Parliament.

The SNP-Green alliance is considering 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 an expert group which made a series of recommendations for a new criminal offence, which it claims will be within Holyrood’s devolved powers.

Mr O’Neill, however, has said the proposals are “fundamentally illiberal” and “beyond the powers of the Scottish Parliament to legislate”.

In a written opinion for the Christian Institute, Mr O’Neill said the far-reaching ‘conversion therapy’ proposals would criminalise innocent parents and preachers.

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’.

“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.”

In his opinion, Mr O’Neill also states that 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.

He said: “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.

“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.

“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.”