Chamber
Meeting of the Parliament 27 October 2011
27 Oct 2011 · S4 · Meeting of the Parliament
Item of business
Scots Criminal Law (Integrity)
Scotland has a unique legal tradition that is many centuries old and proudly independent. The existence of distinctive Scots law predates the treaty of union by centuries. The old Scots Parliament made laws for Scotland and those laws were applied in Scotland’s courts long before 1707.
The distinctiveness of Scots law has been at the heart of our national identity and civic society, and we have a duty to preserve and uphold it. I know that that view is widely held. It is critically important that we maintain the identity and the substance of Scots law. They are the foundations on which our legal institutions stand and are part of our civic democracy. That identity and that independence were constitutionally guaranteed by the treaty of union in 1707, and they have been cherished and preserved for centuries since then.
With that in mind, I am delighted to welcome the report that has been prepared by the independent review group led by Lord McCluskey. Once again, I welcome him and his colleague Sheriff Charles Stoddart to the chamber, and I want to pay tribute to the individual members of the group.
Lord John McCluskey is a central figure in the history of Scottish constitutional change. He was Solicitor General for Scotland when the first devolution proposals came before the Westminster Parliament in the 1970s, and he presided as a High Court judge for 16 years over some of the most significant cases in Scottish legal history.
Sir Gerald Gordon was a sheriff for nearly 25 years and a temporary judge at the High Court until June 2004. He was professor of Scots law and head of the department of criminal law and criminology at the University of Edinburgh. He has been an advocate and procurator fiscal depute, and he was a member of the Scottish Criminal Cases Review Commission from its inception in 1999.
Sheriff Charles Stoddart was the first director of judicial studies for the Judicial Studies Committee for Scotland and a well-respected sheriff.
Professor Neil Walker is regius professor of public law and the law of nature and nations at the University of Edinburgh, and an internationally renowned expert on constitutional theory.
The group’s report is objective, measured and informed by an unparalleled level of expertise. The advice provides a sound and sensible basis for progressing matters. The analysis that the group has produced is considered. It recognises the need for change and puts forward measured and achievable suggestions on how we can bring about that change.
In taking on the task, the group was clear that the review would operate within the current constitutional situation. That is not the constitutional situation that the First Minister and I seek, but it is the one that we find ourselves with and require to address. The Scottish Government’s position on constitutional change is well known. It goes without saying that we are preparing Scotland to be a modern, independent nation. However, this debate is not about constitutional change; rather, it is about ensuring that the integrity of the Scottish legal system is preserved. People must take any threat to Scotland’s historic legal tradition seriously, whether they support independence, devolution or the status quo.
Until 1999, the High Court of Justiciary sat in its rightful place at the apex of the Scottish criminal justice system. I accept that devolution was not intended to change that, but the jurisdiction of the United Kingdom Supreme Court has developed in the intervening years, and that has had effects in ways that were not foreseen when I was being lectured by Sheriff Stoddart and Sir Gerald Gordon.
I simply seek to suggest ways in which the situation can be remedied, whereby the High Court has the final say on Scots criminal matters and the UK Supreme Court assumes a role as a proper constitutional court and is certainly not a further court of general appeal. That is a perfectly normal state of affairs in any modern European democracy where there is a clear distinction between the proper role of the criminal courts and the function of a specialist court that is tasked specifically with the role of interpreting and defining convention rights. The courts should not compete with but complement each other.
The review group made a number of arguments. First, the UK Supreme Court should be limited in jurisdiction, ruling only on the application of convention rights and not on any remedy offered in recompense for breach of those rights. Secondly, an appeal to the UK Supreme Court should be competent to proceed only when a point of general public importance is judged to be raised. Thirdly, provisions for appealing to the UK Supreme Court should not be limited to acts of the Lord Advocate but should be extended to all acts of public bodies, including the Scottish ministers.
On the first point, we agree that the UK Supreme Court should not rule on remedy. Under the current arrangements, we would be prepared to accept that it has a role in interpreting the European convention on human rights and handing down its interpretation. However, actively to suggest remedies for breaches is to take a step too far. The role of the court should rest with giving authoritative rulings on compliance.
We also agree on the second point. It is simply not acceptable that the High Court of Justiciary in Scotland does not have the same powers as its counterparts in England and Wales when it comes to certifying a case for consideration by the UK Supreme Court. That is a strange anomaly, which must be remedied.
We agree on the third point, too. The Human Rights Act 1998 already captures the acts of public bodies, and the recognition of that is simply the putting into effect of what currently happens, through the office of the Lord Advocate. It would make sense and be more transparent to recognise the situation in relation to criminal proceedings, rather than trying to fit such acts into the term
“an act of the Lord Advocate”.
It is far better that the system should be clear, particularly to the public, who do not have the luxury of immersing themselves in the finer detail of criminal procedure.
The distinctiveness of Scots law has been at the heart of our national identity and civic society, and we have a duty to preserve and uphold it. I know that that view is widely held. It is critically important that we maintain the identity and the substance of Scots law. They are the foundations on which our legal institutions stand and are part of our civic democracy. That identity and that independence were constitutionally guaranteed by the treaty of union in 1707, and they have been cherished and preserved for centuries since then.
With that in mind, I am delighted to welcome the report that has been prepared by the independent review group led by Lord McCluskey. Once again, I welcome him and his colleague Sheriff Charles Stoddart to the chamber, and I want to pay tribute to the individual members of the group.
Lord John McCluskey is a central figure in the history of Scottish constitutional change. He was Solicitor General for Scotland when the first devolution proposals came before the Westminster Parliament in the 1970s, and he presided as a High Court judge for 16 years over some of the most significant cases in Scottish legal history.
Sir Gerald Gordon was a sheriff for nearly 25 years and a temporary judge at the High Court until June 2004. He was professor of Scots law and head of the department of criminal law and criminology at the University of Edinburgh. He has been an advocate and procurator fiscal depute, and he was a member of the Scottish Criminal Cases Review Commission from its inception in 1999.
Sheriff Charles Stoddart was the first director of judicial studies for the Judicial Studies Committee for Scotland and a well-respected sheriff.
Professor Neil Walker is regius professor of public law and the law of nature and nations at the University of Edinburgh, and an internationally renowned expert on constitutional theory.
The group’s report is objective, measured and informed by an unparalleled level of expertise. The advice provides a sound and sensible basis for progressing matters. The analysis that the group has produced is considered. It recognises the need for change and puts forward measured and achievable suggestions on how we can bring about that change.
In taking on the task, the group was clear that the review would operate within the current constitutional situation. That is not the constitutional situation that the First Minister and I seek, but it is the one that we find ourselves with and require to address. The Scottish Government’s position on constitutional change is well known. It goes without saying that we are preparing Scotland to be a modern, independent nation. However, this debate is not about constitutional change; rather, it is about ensuring that the integrity of the Scottish legal system is preserved. People must take any threat to Scotland’s historic legal tradition seriously, whether they support independence, devolution or the status quo.
Until 1999, the High Court of Justiciary sat in its rightful place at the apex of the Scottish criminal justice system. I accept that devolution was not intended to change that, but the jurisdiction of the United Kingdom Supreme Court has developed in the intervening years, and that has had effects in ways that were not foreseen when I was being lectured by Sheriff Stoddart and Sir Gerald Gordon.
I simply seek to suggest ways in which the situation can be remedied, whereby the High Court has the final say on Scots criminal matters and the UK Supreme Court assumes a role as a proper constitutional court and is certainly not a further court of general appeal. That is a perfectly normal state of affairs in any modern European democracy where there is a clear distinction between the proper role of the criminal courts and the function of a specialist court that is tasked specifically with the role of interpreting and defining convention rights. The courts should not compete with but complement each other.
The review group made a number of arguments. First, the UK Supreme Court should be limited in jurisdiction, ruling only on the application of convention rights and not on any remedy offered in recompense for breach of those rights. Secondly, an appeal to the UK Supreme Court should be competent to proceed only when a point of general public importance is judged to be raised. Thirdly, provisions for appealing to the UK Supreme Court should not be limited to acts of the Lord Advocate but should be extended to all acts of public bodies, including the Scottish ministers.
On the first point, we agree that the UK Supreme Court should not rule on remedy. Under the current arrangements, we would be prepared to accept that it has a role in interpreting the European convention on human rights and handing down its interpretation. However, actively to suggest remedies for breaches is to take a step too far. The role of the court should rest with giving authoritative rulings on compliance.
We also agree on the second point. It is simply not acceptable that the High Court of Justiciary in Scotland does not have the same powers as its counterparts in England and Wales when it comes to certifying a case for consideration by the UK Supreme Court. That is a strange anomaly, which must be remedied.
We agree on the third point, too. The Human Rights Act 1998 already captures the acts of public bodies, and the recognition of that is simply the putting into effect of what currently happens, through the office of the Lord Advocate. It would make sense and be more transparent to recognise the situation in relation to criminal proceedings, rather than trying to fit such acts into the term
“an act of the Lord Advocate”.
It is far better that the system should be clear, particularly to the public, who do not have the luxury of immersing themselves in the finer detail of criminal procedure.
In the same item of business
The Deputy Presiding Officer (John Scott)
Con
The next item of business is a debate on motion S4M-01133, in the name of Kenny MacAskill, on ensuring the integrity of Scots criminal law.14:59
The Cabinet Secretary for Justice (Kenny MacAskill)
SNP
Scotland has a unique legal tradition that is many centuries old and proudly independent. The existence of distinctive Scots law predates the treaty of union...
Johann Lamont (Glasgow Pollok) (Lab)
Lab
Does the cabinet secretary think that the public might prefer him not to go on in great detail about the issue but instead address the key issue for the just...
Kenny MacAskill
SNP
I would have hoped that, on a matter of huge constitutional importance that is fundamental to the integrity of Scots criminal law, the member’s intervention ...
James Kelly (Rutherglen) (Lab)
Lab
I welcome the opportunity to take part in this afternoon’s debate. I thank Lord McCluskey and his colleagues for the work that they have done in producing no...
Kenny MacAskill
SNP
Does the member recognise that the Lord President’s letter says:“the High Court should be brought into line with the Court of Appeal (Criminal Division) and ...
James Kelly
Lab
If Mr MacAskill looks back at the submissions to the expert group that Lord Wallace established, he will see that only two submissions supported the route th...
John Lamont (Ettrick, Roxburgh and Berwickshire) (Con)
Con
I, too, welcome the opportunity for members to look in detail at the final report by Lord McCluskey’s review group. We had an informative debate on the inter...
Alison McInnes (North East Scotland) (LD)
LD
I, too, welcome the opportunity to debate the review group’s report and set it in the context of the wider debate. I find it interesting that, after the Gove...
Kenny MacAskill
SNP
The member seems to be suggesting that, south of the border, the UK Supreme Court is the final court of appeal on criminal matters. Given that it is accepted...
Alison McInnes
LD
I do not agree. The reason for having certification south of the border is the vast number of cases that might appear in the Supreme Court. The number of suc...
Roderick Campbell (North East Fife) (SNP)
SNP
I declare an interest as a member of the Faculty of Advocates.I welcome the findings of Lord McCluskey’s further report as part of the on-going debate about ...
The Deputy Presiding Officer (Elaine Smith)
Lab
I have a wee bit of time in hand for interventions.15:40
John Finnie (Highlands and Islands) (SNP)
SNP
The debate is about Scots law, not about any other system. It is about respect for the unique features of Scots law.When the UK Supreme Court commenced opera...
Hugh Henry (Renfrewshire South) (Lab)
Lab
It is hard to conclude that the Scottish Government is, as John Finnie suggested, outward looking on the issue that we are discussing, because everything tha...
Annabelle Ewing (Mid Scotland and Fife) (SNP)
SNP
Will the member give way?
Hugh Henry
Lab
Certainly.
Annabelle Ewing
SNP
I thank the member for giving way. It is interesting to hear about his research into the definitions of various words but it would be quite helpful if he cou...
Hugh Henry
Lab
Other members in my group have outlined their specific points on that, but we must take notice of the general context. Earlier this year intemperate and disg...
George Adam (Paisley) (SNP)
SNP
Obviously, I did not think things out too well when I sat down for this debate next to an advocate. However, I hope that I can show some good old-fashioned c...
David McLetchie (Lothian) (Con)
Con
Will the member give way?
George Adam
SNP
Against my better judgment, I will.
David McLetchie
Con
Is the member aware that the High Court got the Donoghue v Stevenson decision wrong in a sense? It was actually the House of Lords that established the princ...
George Adam
SNP
As I said, the cases that I have been discussing are civil, not criminal.The public believes and the cabinet secretary is correct to say that the distinctive...
The Deputy Presiding Officer
Lab
I remind members that we have a wee bit of spare time. Members taking interventions would be preferable to any shouting out from the seats.15:57
Annabelle Ewing (Mid Scotland and Fife) (SNP)
SNP
I preface my remarks by stating for the record that I am a member of the Law Society of Scotland and that I hold a current practising certificate. I remember...
James Kelly
Lab
Annabelle Ewing’s premise seems to be that the Supreme Court’s ability to take cases from Scotland should be limited. It was not clear from the cabinet secre...
Annabelle Ewing
SNP
If I understand James Kelly correctly, he is addressing the issue of deleting the reference to the Lord Advocate and extending it to cover public bodies, whi...
Graeme Pearson (South Scotland) (Lab)
Lab
I thank Lord McCluskey’s group for the effort that it has made and the quality of the report that it has produced in such quick time and in unfortunate circu...
Derek Mackay (Renfrewshire North and West) (SNP)
SNP
Does the member not think that he, like many Labour Party members, is becoming victim to thinking that the debate is about the rhetoric rather than the subst...