The Scottish Government controls the policing of protest in Scotland

It has taken a surprisingly long time for the debate over the repressive handling of pro-Palestine protest in Scotland to make its way to the Lord Advocate's desk, at least in public. But it is there now and it highlights a reality that should have been debated earlier.

As it has become increasingly clear, the UK Government has developed an ever-more authoritarian attitude to what represents legitimate protest in the UK. It is no coincidence that this is happening during a period where citizens in Britain have more and more to protest about.

But where they have created laws that are reserved at a UK level (such as terrorism laws), both the policing and the prosecution of those laws are devolved, and it is entirely possible for the Scottish Government to take a distinctly different approach to how the same laws are policed and prosecuted.

It is therefore a Scottish Government decision on how heavy-handed or otherwise is the policing of protest (and of the quite ridiculous proscription of Palestine Action as a 'terrorist organisation'). And yet somehow the debate about the guidance provided to the police and prosecution service has been successfully avoided by pointing to reserved powers in London.

For context, in 2021 at the height of the debate over Scotland's inordinately high drug deaths, a decision in Scotland was made to 'deprioritise' the arrest of people in possession of drugs. Drugs law is reserved at the UK level and it remains the case that possession of drugs in Scotland is a crime.

But because the policing and prosecution of possession of small amounts of drugs for personal use was viewed as counterproductive in tackling drug deaths, a decion was made to have a presumption against doing so. It was about proportionality and the wider public good.

There is every reason to argue that mass arrests of peaceful protestors (as we know, many of them older and most of them respectable members of society with no prior criminal record) is not in the public interest. The Scottish Government could instead guide the police to use cautions and warnings.

There is some evidence (though we don't yet know) that a decision has been made not to pursue prosecution of those arrested. Again, this makes for simple common sense since it would seem that the prospects of jurys finding sympathetic elderly ladies guilty of terrorism for opposing a genocide that most of the public also opposes are pretty slim.

Nevertheless, police harassment does seem to be happening in Scotland and it is difficult to see why it is in the public good. Some people who have been arrested for pro-Palestinian protest have had draconian restrictions on their civil liberties imposed prior to any court case. Others have received police visits daily for days on end.

Given the difficulty many victims of crime have in getting a proportionate response from the police, it seems impossible to justify daily police visits to a lifelong campaigner who has never been involved in a violent offence.

Again, none of this is about changing the law but about changing how the law is interpreted and implemented and how arrests are prosecuted – and those are all devolved and so subject to Scottish decision-making.

But this goes back to the very beginning of the current protest movements. From the beginning there have been credible allegations of heavy-handed policing, the kinds of allegations you generally don't hear from participants in other forms of protest.

It has, from the beginning, been impossible to avoid the strong impression that policing guidelines in Scotland treated pro-Palestinian protest differently than other protest and that this was a policing decision which is ultimately the responsibility of the Scottish Governmet.

Yet throughout both the Lord Advocate (who is a member of the Scottish Cabinet) and the Scottish Government have successfully redirected discontent towards Westminster.

But it leaves the ongoing impression that the Scottish Government is saying one thing about matters relating to Gaza and doing another. A clear statement by Ministers and clear guideance to Police Scotland and to the prosecution service could easily ally those concerns.