The National:

THE decision by the Scottish Parliament Corporate Body to seek to "protect" the Scottish Parliament from protesters, aka "the people", is an astonishing decision which has caused widespread concern.

At the weekend the SNP conference passed a motion condemning this development, and the matter was raised by Green MSP Gillian Mackay in Holyrood only to have her concerns dismissed by SPCB member Clair Baker, the Labour MSP.

Democracy is more than just casting a vote in an election every few years. It is not just an occasional event but a process, an ongoing dialogue between the people and their elected representatives.

An important part of that democratic dialogue is the right to peaceful protest, a right guaranteed by article 11 of the European Convention of Human Rights.

READ MORE: Secret papers on Holyrood protest curb won't be released, MSPs told

Even the Tory Unionist Sir Walter Scott recognised that a London-based legislature was unresponsive to Scotland’s wishes when he put into the mouth of one of the characters in the Heart of Midlothian: “When we had a king, and a chancellor, and parliament-men o' our ain, we could aye peeble them wi' stanes when they werena gude bairns. But naebody's nails can reach the length o' Lunnon."

An important part of dynamic of devolution is the ability it gave to make it easy for Scots to protest outside their Edinburgh Parliament rather than face the expense and effort of travelling to London.

The SPCB has asked the Westminster Government to designate the Scottish Parliament building and its grounds as a “protected site” in the interests of “national security” under a UK statute the Serious Organised Crime and Police Act 2005, s. 129. This is a blunt legislative hammer to crack a very small democratic nut and can be criticised on several grounds: need, scope and process.


Firstly, it is far from clear that the security of Holyrood has been in any significant ways endangered and even if there have been the odd security breach by protestors on the roof that could easily be dealt with by the existing criminal law.


The effect of designating Holyrood as a “protected site” is to presumptively criminalise everyone who sets foot on the site.

Section 129 (1) is short but very sharp: “A person commits an offence if he enters, or is on, any protected Scottish site without lawful authority.”

No definition is given in the Act as to what constitutes “without lawful authority” which is worrying. The potential penalties for breaking this undefined offence are severe: up to 12 months in prison and/or a £5000 fine!

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.

The National: Newly elected Presiding Officer of the Scottish Parliament Alison Johnstone during the oath and affirmation ceremony at the Scottish Parliament

In her letter to MSPs announcing the decision to create the "designated area" Presiding Officer Alison Johnstone (above) stated: “We recognise that such protests are an essential part of the expression of democracy in Scotland.”

But she then complained that “at present, the police have limited ability to intervene if there is no substantive criminal offence taking place, and disruptive protests can become especially prolonged.” 

Johnstone continued: “SOCPA [Serious Organised Crime and Police Act 2005] was enacted specifically to provide a solution to these competing tensions, to the extent that the right to protest and right to assemble at protected sites have already been balanced in law against the public interest in such sites being able to function safely and securely.”

READ MORE: Protest restrictions plan for Scottish Parliament is poor on so many levels

With all due respect to Ms Johnstone this is simply wrong. The designated areas provisions of SOCPA were designed to prevent protests not facilitate them.

In particular these provisions were introduced in response to the long protest by Brian Haw (below), a peace campaigner, who from June 1, 2001 until his death on June 18, 2011 protested outside Westminster against the Iraq War. Since then this legislation has been used to prosecute several peaceful protesters.

The National: Peace campaigner Brian Haw faces eviction from a patch of grass in Parliament Square Gardens

Further, by choosing to make Holyrood a “protected site” the SPCB have set a potentially dangerous precedent. If the “Union Jack House” of the Scotland Office becomes the focus of pro-independence demonstrations as is quite likely, then Westminster may well decide to designate it a "protected site" under the 2005 Act to penalise protests.


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.

A properly drafted “right to safe protest” could have expressly balanced the right to protest with the need to protect the buildings and personnel of the Scottish Parliament. Such Scots legislation should start by asserting the right to peaceful protest and then qualify that right where appropriate, eg violence. This would have been much more satisfactory Scots solution than invoking the British 2005 Act.

Reversing the decision SPBC decisions can be overturned by Parliament. Indeed this is what happened in January 2020 when the Parliament reversed the SPCB decision to stop flying the EU flag outside Holyrood when Brexit took effect.

Given the recent motion passed at the SNP Conference condemning the decision, surely the Scottish Government would make time for a motion reversing it, just as they did in January 2020 over the flying of the EU flag issue? Symbols such as flags matter, as does the symbolism of an express right to protest outside Holyrood without the risk of prosecution.

Scott Crichton Styles is a Senior Lecturer in Law at the University of Aberdeen