A LEADING lawyer has said that a proposed ban on conversion therapy in Scotland is beyond the powers of the Scottish Parliament.
In a legal opinion commissioned by The Christian Institute – an evangelical Christian campaign group – Aidan O’Neill KC said that, in his view, the recommendations an expert group “would be beyond the powers of the Scottish Parliament to legislate”.
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It proposes making the “most serious and harmful” forms of conversion practices a criminal offense in Scotland, including coercive behaviour that meets a certain threshold.
O’Neill’s legal opinion analyses the recommendations of an Expert Advisory Group on Ending Conversion Practices, which was set up by the Scottish Government in 2022 and informed the consultation document.
He said the Expert Group’s recommendations are “fundamentally illiberal in intent” and would criminalise parents who seek to caution their children against seeking gender affirming care.
He added that the recommendations would also criminalise “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”.
Similarly, he accused the Expert Group of brushing aside “issues around the that questions as to the proper place for the expression of sex and sexuality, and questions around gender identity and gender expression are matters of ongoing controversy and contention within Scotland.”
He concludes that “there are very strong arguments indeed that these legislative proposals of the Scottish Government are beyond the legislative competence of the Scottish Parliament, primarily because of their over-breadth, their disproportionate intrusion into private and family life and freedom of religion and freedom of expression, but also because of their internal incoherence.”
Simon Calvert from the Christian Institute said: “This is another example of the Scottish Government asking Holyrood to exceed its powers and impose draconian legislation on the people.
“If this deeply flawed law is passed it will be challenged all the way to the Supreme Court if necessary.
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“Ordinary mums and dads face criminalisation for trying to extract their kids from the grip of radical trans ideology. Church leaders face prosecution for not praying in accordance with state dogmas. This is outrageous.
“They’ve spent over two years drafting this. It’s time to admit that no-one can define what conversion therapy is, let alone how to criminalise it.”
The Scottish Government has previously said there is "no serious risk" that a ban on conversion practices would criminalise parents.
A Scottish Government spokesperson said: “As set out in the consultation, our proposals do not prohibit parental and religious guidance that is not motivated by an intention to change or supress their sexual orientation or gender identity.
“Our approach fully respects the existing legal right to a private and family life, and the freedoms of speech, religion and belief.
“This is a consultation, and the Scottish Government is open to all views.”
Similar laws outlawing the provision or advertising of conversion practices have already been rolled out in several countries across Europe, including France, Germany, and Malta.
The Christian Institute has already vowed to fight the Scottish legislation in the courts.
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