Chamber
Meeting of the Parliament 27 October 2011
27 Oct 2011 · S4 · Meeting of the Parliament
Item of business
Scots Criminal Law (Integrity)
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 operations on 1 October 2009, it took on the judicial functions of the House of Lords: appeals from England, Scotland and Wales, including human rights issues.
With regard to Scotland, it was envisaged that the UK Supreme Court would hear civil appeals from the Court of Session. The intention was that the High Court of Justiciary remained the highest court of criminal appeal. One unintended consequence of the inauguration of the UK Supreme Court has been that Scottish criminal case defendants can appeal to the Supreme Court on human rights grounds. That was never imagined when the court was established.
As we have heard many times, unlike English and Welsh defendants, Scottish defendants can appeal to the Supreme Court without leave to appeal from the High Court. That clearly puts Scots law on a different footing from legal systems elsewhere in the UK.
I quote Paul McBride QC, who is a much-quoted man in this chamber. He states:
“the truth of the matter is—you can get to the Supreme Court in Scotland by-passing our Scottish courts, you can’t do that in England. That’s unacceptable.”
I agree that it is unacceptable and it is also unacceptable that the UK Supreme Court has overturned decisions of the High Court of Justiciary.
The UK Supreme Court should not be ruling on remedy as an ordinary court of appeal. It should be fulfilling its function as a constitutional court: interpreting and defining convention rights and relaying those judgments back to the High Court to determine remedy. This is clearly a matter of devolution not functioning correctly. The original provision in the Scotland Act 1998 never intended matters of criminality to be considered under the locus of devolution issues.
A matter of Scots identity is at stake. The UK Supreme Court interferes in Scots criminal law and that impacts on the distinctive nature of Scots law. The Scottish Government seeks a position in the Scotland Bill whereby the UK Supreme Court should not have any general jurisdiction in matters relating to criminal law.
My colleague Rod Campbell quoted from the Scottish Law Commission’s submission to the Advocate General’s review of devolution issues. The submission goes on to state:
“The European Court of Human Rights has recognised the ... inadvisability of attempting to introduce a ‘one size fits all’ approach to disparate systems of criminal justice.”
That is something that the chamber should recognise. I hope that the chamber will stand up for Scotland’s distinctive legal system and prevent further interference.
I, too, welcome the report published by Lord McCluskey and his colleagues. It was announced on 5 June that there would be a review of the law and practice that currently governs the respective jurisdictions of the High Court of Justiciary and the UK Supreme Court.
It is important to note that Lord McCluskey and his colleagues considered the issues within the current constitutional settlement. We have heard from the Cabinet Secretary for Justice that that is not necessarily how we will see things in the future.
We have also heard that we wish the recommendations to be implemented. It is agreed that the Supreme Court should continue to have
“an appellate jurisdiction in relation to issues of convention rights arising in Scottish criminal cases”.
However, it is important that the extent of its role should be clearly defined and limited. The High Court of Justiciary should remain the final court of appeal in Scottish criminal cases.
I strongly support the view that an appeal to the Supreme Court from the High Court should require the granting of a certificate that the case raises a point of law of general importance or concerns the victim of a violation of convention rights under the ECHR.
The existing system whereby the UK Supreme Court is a court of appeal within the criminal justice system is constitutionally problematic and affects the historical independence of Scots law. The Supreme Court’s role clearly needs to be defined.
As we have heard, the current Scotland Bill proposals are profoundly flawed and require significant recasting to maintain the High Court of Justiciary as the apex of the Scots legal system. There is no reason to make the position of the High Court different from the position of courts elsewhere in the UK.
It is disappointing that issues have been raised about the Scottish Government’s commitment to human rights. The Government remains fully committed to human rights. My colleague Alison McInnes, along with other members and the Law Society of Scotland, has raised issues about the need for an audit of Scots criminal law to ensure compatibility with the ECHR and avoid costly compensation claims. We all support that. Indeed, the Cabinet Secretary for Justice has indicated that that will occur. As we have heard, in any case, that forms part of the scrutiny of any proposed legislation that passes through the Parliament.
It is important to note that the Scottish Government is not inward looking—it is outward looking. As my colleagues have said, we have learned from abroad and will continue to do so. It is important that we play our part in international law. We, like all members, are supportive of human rights and social justice, but that does not mean that we will not defend our unique legal system and prevent further interference.
15:46
When the UK Supreme Court commenced operations on 1 October 2009, it took on the judicial functions of the House of Lords: appeals from England, Scotland and Wales, including human rights issues.
With regard to Scotland, it was envisaged that the UK Supreme Court would hear civil appeals from the Court of Session. The intention was that the High Court of Justiciary remained the highest court of criminal appeal. One unintended consequence of the inauguration of the UK Supreme Court has been that Scottish criminal case defendants can appeal to the Supreme Court on human rights grounds. That was never imagined when the court was established.
As we have heard many times, unlike English and Welsh defendants, Scottish defendants can appeal to the Supreme Court without leave to appeal from the High Court. That clearly puts Scots law on a different footing from legal systems elsewhere in the UK.
I quote Paul McBride QC, who is a much-quoted man in this chamber. He states:
“the truth of the matter is—you can get to the Supreme Court in Scotland by-passing our Scottish courts, you can’t do that in England. That’s unacceptable.”
I agree that it is unacceptable and it is also unacceptable that the UK Supreme Court has overturned decisions of the High Court of Justiciary.
The UK Supreme Court should not be ruling on remedy as an ordinary court of appeal. It should be fulfilling its function as a constitutional court: interpreting and defining convention rights and relaying those judgments back to the High Court to determine remedy. This is clearly a matter of devolution not functioning correctly. The original provision in the Scotland Act 1998 never intended matters of criminality to be considered under the locus of devolution issues.
A matter of Scots identity is at stake. The UK Supreme Court interferes in Scots criminal law and that impacts on the distinctive nature of Scots law. The Scottish Government seeks a position in the Scotland Bill whereby the UK Supreme Court should not have any general jurisdiction in matters relating to criminal law.
My colleague Rod Campbell quoted from the Scottish Law Commission’s submission to the Advocate General’s review of devolution issues. The submission goes on to state:
“The European Court of Human Rights has recognised the ... inadvisability of attempting to introduce a ‘one size fits all’ approach to disparate systems of criminal justice.”
That is something that the chamber should recognise. I hope that the chamber will stand up for Scotland’s distinctive legal system and prevent further interference.
I, too, welcome the report published by Lord McCluskey and his colleagues. It was announced on 5 June that there would be a review of the law and practice that currently governs the respective jurisdictions of the High Court of Justiciary and the UK Supreme Court.
It is important to note that Lord McCluskey and his colleagues considered the issues within the current constitutional settlement. We have heard from the Cabinet Secretary for Justice that that is not necessarily how we will see things in the future.
We have also heard that we wish the recommendations to be implemented. It is agreed that the Supreme Court should continue to have
“an appellate jurisdiction in relation to issues of convention rights arising in Scottish criminal cases”.
However, it is important that the extent of its role should be clearly defined and limited. The High Court of Justiciary should remain the final court of appeal in Scottish criminal cases.
I strongly support the view that an appeal to the Supreme Court from the High Court should require the granting of a certificate that the case raises a point of law of general importance or concerns the victim of a violation of convention rights under the ECHR.
The existing system whereby the UK Supreme Court is a court of appeal within the criminal justice system is constitutionally problematic and affects the historical independence of Scots law. The Supreme Court’s role clearly needs to be defined.
As we have heard, the current Scotland Bill proposals are profoundly flawed and require significant recasting to maintain the High Court of Justiciary as the apex of the Scots legal system. There is no reason to make the position of the High Court different from the position of courts elsewhere in the UK.
It is disappointing that issues have been raised about the Scottish Government’s commitment to human rights. The Government remains fully committed to human rights. My colleague Alison McInnes, along with other members and the Law Society of Scotland, has raised issues about the need for an audit of Scots criminal law to ensure compatibility with the ECHR and avoid costly compensation claims. We all support that. Indeed, the Cabinet Secretary for Justice has indicated that that will occur. As we have heard, in any case, that forms part of the scrutiny of any proposed legislation that passes through the Parliament.
It is important to note that the Scottish Government is not inward looking—it is outward looking. As my colleagues have said, we have learned from abroad and will continue to do so. It is important that we play our part in international law. We, like all members, are supportive of human rights and social justice, but that does not mean that we will not defend our unique legal system and prevent further interference.
15:46
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...