Chamber
Meeting of the Parliament 27 October 2011
27 Oct 2011 · S4 · Meeting of the Parliament
Item of business
Scots Criminal Law (Integrity)
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 would have added to matters rather than detracting from the dignity and majesty of these proceedings.
There are pressures in the courts system. We will debate them, and doubtless they will be discussed and argued about in the Parliament. However, Ms Lamont offered no perspective on the matter that we are debating. Does she think that this debate is irrelevant? Is it not worthy of her consideration? Cannot she ask a question that relates to the fundamental matter in hand, which is the integrity of Scottish criminal law and how we deal with the UK Supreme Court? I do not seek to diminish the challenges that the Crown Office and Procurator Fiscal Service faces, but I would have thought that the member would have made a contribution that was worthy of a debate in which we are honoured by the attendance of Lord McCluskey and Sheriff Charles Stoddart.
The review group’s recommendation remedies the situation that was introduced by the Scotland Act 1998, which Lord McCluskey described recently in the House of Lords as “constitutionally inept”.
There are other points with which we agree. It seems sensible to allow the UK Supreme Court to reformulate the questions, albeit within properly defined parameters. We would be relaxed about the retention of the powers of the Lord Advocate and the Advocate General to refer cases if they felt that there was a point of general public importance. I note that there are others who agree with the McCluskey group recommendations, including the Lord President, who has written to the Scotland Bill Committee indicating that Scotland’s most senior judges are in agreement with the report, particularly on the point of certification. In an important debate about matters involving the Lord Advocate and the Advocate General, which includes comments from the Lord President, it would be worthy of members to contribute constructively to achieve the necessary outcome of preserving the integrity of the judicial system in Scotland.
I say to those who argue against certification simply that Scotland has an independent legal system. As I said at the outset, it was preserved by the treaty of union and predates the treaty of union. It has been a fundamental part of the democratic and civic structures in our society that have grown up in parallel with, but distinct from, those south of the border and we imperil it at our own danger. We must trust the High Court of Justiciary to consider the merits of cases and rule accordingly, just as the courts of appeal in the other constituent parts of the UK are trusted. In that way, both the High Court and the UK Supreme Court will be able to fulfil their respective functions.
In seeking to take concrete actions to address those issues, I will write today to the Scotland Bill Committee of this Parliament in advance of its evidence session on Tuesday. I will also write to the Advocate General and the Secretary of State for Scotland with a copy of draft illustrative provisions that are designed to implement the McCluskey group’s recommendations. I look forward to holding further discussions with the Advocate General and others as we seek to agree on a solution that is in the best interests of Scotland.
In the meantime, I urge the Parliament to endorse the conclusions of the review group’s report and call on others to recognise that they offer the best path to safeguarding the integrity of our historic independent legal system. This is not necessarily the position that the Government would take in an independent Scotland. However, while we remain in a devolved Scotland, it is fundamental that we preserve the integrity of that which was meant to be protected, and was specified as being protected, in the treaty of union. For that reason, this is an important debate and should be treated as such by all members. It was because of the importance of the subject that Lord McCluskey and his colleagues—given their eminence and seniority in law in Scotland—were asked to consider it. Now that they have produced a report that is supported not only by me—as might be expected, putting my faith in the great and the good—but by the Lord President, the most senior judge in Scotland, speaking not only personally but on behalf of the senior judges of Scotland, it is important that the Scottish Parliament listens and acts.
I move,
That the Parliament welcomes the conclusions of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of Justiciary and the Supreme Court in criminal cases; welcomes the review group’s comments about the historical independence of the Scottish legal system and its conclusion that this position should be maintained by restoring the High Court to its rightful place at the apex of that system; further welcomes the review group’s suggestion of a certification procedure granted by the High Court of Justiciary for criminal cases; notes the review group’s view that the UK Supreme Court should have a limited jurisdiction, ruling solely on the point of law relating to convention rights arising in criminal cases, and calls on the UK Government to work with the Scottish Government to deliver a solution through the Scotland Bill that reflects the recommendations of the review and preserves the integrity of Scots criminal law.
15:13
There are pressures in the courts system. We will debate them, and doubtless they will be discussed and argued about in the Parliament. However, Ms Lamont offered no perspective on the matter that we are debating. Does she think that this debate is irrelevant? Is it not worthy of her consideration? Cannot she ask a question that relates to the fundamental matter in hand, which is the integrity of Scottish criminal law and how we deal with the UK Supreme Court? I do not seek to diminish the challenges that the Crown Office and Procurator Fiscal Service faces, but I would have thought that the member would have made a contribution that was worthy of a debate in which we are honoured by the attendance of Lord McCluskey and Sheriff Charles Stoddart.
The review group’s recommendation remedies the situation that was introduced by the Scotland Act 1998, which Lord McCluskey described recently in the House of Lords as “constitutionally inept”.
There are other points with which we agree. It seems sensible to allow the UK Supreme Court to reformulate the questions, albeit within properly defined parameters. We would be relaxed about the retention of the powers of the Lord Advocate and the Advocate General to refer cases if they felt that there was a point of general public importance. I note that there are others who agree with the McCluskey group recommendations, including the Lord President, who has written to the Scotland Bill Committee indicating that Scotland’s most senior judges are in agreement with the report, particularly on the point of certification. In an important debate about matters involving the Lord Advocate and the Advocate General, which includes comments from the Lord President, it would be worthy of members to contribute constructively to achieve the necessary outcome of preserving the integrity of the judicial system in Scotland.
I say to those who argue against certification simply that Scotland has an independent legal system. As I said at the outset, it was preserved by the treaty of union and predates the treaty of union. It has been a fundamental part of the democratic and civic structures in our society that have grown up in parallel with, but distinct from, those south of the border and we imperil it at our own danger. We must trust the High Court of Justiciary to consider the merits of cases and rule accordingly, just as the courts of appeal in the other constituent parts of the UK are trusted. In that way, both the High Court and the UK Supreme Court will be able to fulfil their respective functions.
In seeking to take concrete actions to address those issues, I will write today to the Scotland Bill Committee of this Parliament in advance of its evidence session on Tuesday. I will also write to the Advocate General and the Secretary of State for Scotland with a copy of draft illustrative provisions that are designed to implement the McCluskey group’s recommendations. I look forward to holding further discussions with the Advocate General and others as we seek to agree on a solution that is in the best interests of Scotland.
In the meantime, I urge the Parliament to endorse the conclusions of the review group’s report and call on others to recognise that they offer the best path to safeguarding the integrity of our historic independent legal system. This is not necessarily the position that the Government would take in an independent Scotland. However, while we remain in a devolved Scotland, it is fundamental that we preserve the integrity of that which was meant to be protected, and was specified as being protected, in the treaty of union. For that reason, this is an important debate and should be treated as such by all members. It was because of the importance of the subject that Lord McCluskey and his colleagues—given their eminence and seniority in law in Scotland—were asked to consider it. Now that they have produced a report that is supported not only by me—as might be expected, putting my faith in the great and the good—but by the Lord President, the most senior judge in Scotland, speaking not only personally but on behalf of the senior judges of Scotland, it is important that the Scottish Parliament listens and acts.
I move,
That the Parliament welcomes the conclusions of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of Justiciary and the Supreme Court in criminal cases; welcomes the review group’s comments about the historical independence of the Scottish legal system and its conclusion that this position should be maintained by restoring the High Court to its rightful place at the apex of that system; further welcomes the review group’s suggestion of a certification procedure granted by the High Court of Justiciary for criminal cases; notes the review group’s view that the UK Supreme Court should have a limited jurisdiction, ruling solely on the point of law relating to convention rights arising in criminal cases, and calls on the UK Government to work with the Scottish Government to deliver a solution through the Scotland Bill that reflects the recommendations of the review and preserves the integrity of Scots criminal law.
15:13
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...