Chamber
Meeting of the Parliament 27 October 2011
27 Oct 2011 · S4 · Meeting of the Parliament
Item of business
Scots Criminal Law (Integrity)
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 such cases is constrained in Scotland because only devolution issues are involved.
The Advocate General’s group noted that many exceptions to the certification system are already in place in the rest of the UK and believed that it would be wholly inappropriate for Scotland to adopt certification unless similar exceptions were put in place—and such a formulation would, it said, “not be straightforward”.
In any case, I fear that, once again, this debate is approaching the whole issue of ECHR compliance from the wrong angle. It is all very well for the cabinet secretary and the First Minister to be outraged that a “foreign court” is “undermining” Scots criminal law with its decisions. However, what I am outraged by—and what this Government should be outraged by—is the fact that our laws still have flaws that allow people's human rights to be impinged on in the first place.
As I said back in June, the perception remains that engagement with the ECHR tends to focus on criminal cases and that, therefore, it is a means of protecting the criminal classes. However, such a perception is not the reality, and nor should it be used as an excuse not to take action to ensure that Scotland’s laws are compatible with the convention. I firmly believe that the Scottish Government must heed the Law Society’s calls for a full review of Scottish criminal law and procedure to determine its compatibility with the ECHR.
I am very concerned that there remains a distinct air of “wha’s like us?” in the Government’s approach to this whole issue. Enshrining and protecting human rights in our laws should be a basic principle of government. However, when discussing concerns about potential human rights implications of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the Lord Advocate appeared to be of the view that the law would be compliant, simply because he
“cannot act in a way that is incompatible with ... the ECHR.”—[Official Report, Justice Committee, 20 September 2011; c 302.]
Ensuring the protection of human rights is far more complicated than that. The Government must take the issue seriously and I hope that, as we move forward, the debate on this issue will be more about the deficiencies of our law and less about taking cheap pot shots at the Supreme Court.
I move amendment S4M-01133.2, to leave out from “conclusions” to end and insert:
“constructive work of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of the Justiciary and the Supreme Court in criminal cases and notes that this follows the work of the Advocate General’s expert group that examined this issue last year; in particular welcomes the review group’s view that the Supreme Court should continue to have jurisdiction in relation to issues of convention rights arising in Scottish criminal cases; recognises that the High Court of the Justiciary is currently the final criminal court of appeal in Scotland; agrees that, in disposing of an appeal, the power of the Supreme Court should be limited to declaring whether or not there has been a breach of a convention right and, if there has been, to saying why this is so, and calls on the Scottish Government to work constructively with the UK Government to take forward a thorough and detailed consideration of the recommendations of both expert groups.”
15:34
The Advocate General’s group noted that many exceptions to the certification system are already in place in the rest of the UK and believed that it would be wholly inappropriate for Scotland to adopt certification unless similar exceptions were put in place—and such a formulation would, it said, “not be straightforward”.
In any case, I fear that, once again, this debate is approaching the whole issue of ECHR compliance from the wrong angle. It is all very well for the cabinet secretary and the First Minister to be outraged that a “foreign court” is “undermining” Scots criminal law with its decisions. However, what I am outraged by—and what this Government should be outraged by—is the fact that our laws still have flaws that allow people's human rights to be impinged on in the first place.
As I said back in June, the perception remains that engagement with the ECHR tends to focus on criminal cases and that, therefore, it is a means of protecting the criminal classes. However, such a perception is not the reality, and nor should it be used as an excuse not to take action to ensure that Scotland’s laws are compatible with the convention. I firmly believe that the Scottish Government must heed the Law Society’s calls for a full review of Scottish criminal law and procedure to determine its compatibility with the ECHR.
I am very concerned that there remains a distinct air of “wha’s like us?” in the Government’s approach to this whole issue. Enshrining and protecting human rights in our laws should be a basic principle of government. However, when discussing concerns about potential human rights implications of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the Lord Advocate appeared to be of the view that the law would be compliant, simply because he
“cannot act in a way that is incompatible with ... the ECHR.”—[Official Report, Justice Committee, 20 September 2011; c 302.]
Ensuring the protection of human rights is far more complicated than that. The Government must take the issue seriously and I hope that, as we move forward, the debate on this issue will be more about the deficiencies of our law and less about taking cheap pot shots at the Supreme Court.
I move amendment S4M-01133.2, to leave out from “conclusions” to end and insert:
“constructive work of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of the Justiciary and the Supreme Court in criminal cases and notes that this follows the work of the Advocate General’s expert group that examined this issue last year; in particular welcomes the review group’s view that the Supreme Court should continue to have jurisdiction in relation to issues of convention rights arising in Scottish criminal cases; recognises that the High Court of the Justiciary is currently the final criminal court of appeal in Scotland; agrees that, in disposing of an appeal, the power of the Supreme Court should be limited to declaring whether or not there has been a breach of a convention right and, if there has been, to saying why this is so, and calls on the Scottish Government to work constructively with the UK Government to take forward a thorough and detailed consideration of the recommendations of both expert groups.”
15:34
References in this contribution
Motions, questions or amendments mentioned by their reference code.
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...