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Meeting of the Parliament 27 October 2011

27 Oct 2011 · S4 · Meeting of the Parliament

Item of business

Scots Criminal Law (Integrity)

Kelly, James Lab Rutherglen Watch on SPTV

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 not only the final report but the interim report that we debated in June.

Mr MacAskill started with a history lesson. I will start with a more recent history lesson to put the debate in context. It is important to reflect on the intemperate contributions that the First Minister and the cabinet secretary made to the debate back in May. Following the Supreme Court’s judgment in the Fraser case, Mr Salmond attacked the England-based judges for the decision. Mr MacAskill told us that such judgments implied that the judges acquired their knowledge of Scots law on a visit to the Edinburgh festival. He also, shockingly, threatened to withdraw funding from the Supreme Court. The Law Society of Scotland and the Faculty of Advocates united to condemn that move. Those comments were unacceptable at the time and did nothing to set the tone that Mr MacAskill has strenuously encouraged Parliament to adopt this afternoon. It seemed to me almost as if Mr MacAskill and the First Minister were telling us that all we needed to get the correct decisions were some Scottish judges in tartan scarves as opposed to English judges wrapped in the St George’s cross. Some members are shaking their heads, but that was the tone of the debate.

I note the report and will move on to discuss the issues in more measured terms. I welcome the fact that the report reinforces the UK Supreme Court’s role. I point out that that is at odds with the view that the Scottish National Party Government expressed back in May, but it is the correct view to take and is entirely logical given the situation that we are in.

Mr MacAskill stressed that we have an independent legal system. However, we are not an independent country. We reside within the UK, and the UK is the signatory to the European convention on human rights. Therefore, it is important that we have consistency throughout the UK and the Supreme Court should be the court of appeal in human rights cases. That recommendation in the report is to be welcomed, particularly when we contrast it with some of the suggestions in the debate back in May, such as having a Scottish supreme court or referring decisions to Strasbourg.

In its submission to the Scotland Bill Committee, the Faculty of Advocates pointed out that the Supreme Court has been used on only very few occasions. Between October 2009 and March 2011, there were 18 requests for the Supreme Court to consider cases and only two of them were taken up. Members should contrast that with Strasbourg, where 150,000 cases are taking up to three and a half years to be heard. We should think of the cost and uncertainty that would arise if we went down that route, as some members suggested earlier in the year.

Three areas in the report require concentration and further consideration. The proposal in the Scotland Bill on acts of the Lord Advocate, which has been discussed in the expert group convened by Lord Wallace and in Lord McCluskey’s group, is a substantive legislative proposal that requires consideration. The expert group, supported by Lord McCluskey’s group, criticised the original constitutional arrangements in relation to the Lord Advocate’s retained functions. It pointed out that that has resulted in practical problems and delays. The proposal has been made to take out the Lord Advocate’s retained functions.

It should be noted that the Law Society has opposed that. It has some concerns on the issue, particularly on how convictions would be treated if convention rights had been breached. However, I note that, in its evidence to the Scotland Bill Committee, the Faculty of Advocates—which was originally opposed to taking the acts of the Lord Advocate out of the arrangements—says that it is hopeful that a solution can be found. It is important that the relevant parties discuss the issues to try to find a solution that is agreeable to all.

Mr MacAskill focused on the proposal that the High Court should have to grant a certificate of public interest in a case before the Supreme Court could hear it. He argued that that would bring Scotland into line with other parts of the UK. That is one side of the argument, but other issues must be considered. If that approach was to be consistent with that in other parts of the UK, it could open up the ability for people to argue—as with criminal cases in England—that an application should be implemented in Scotland, which would provide a route for criminal cases to go to the Supreme Court.

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Meeting of the Parliament 27 October 2011

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