Chamber
Meeting of the Parliament 27 October 2011
27 Oct 2011 · S4 · Meeting of the Parliament
Item of business
Scots Criminal Law (Integrity)
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 distinctiveness of Scots law has been at the heart of our national identity in civic society. I would go so far as to say that our Parliament exists because Scots law retained its independence from the early years of the union until now.
As part of my example about why we should be careful to take the public along with us, I will use someone as simple as my wife’s aunt—[Laughter.] I do not mean simple in that way. I mean that the discussion or argument is simple.
She keeps phoning up my wife to ask why that court down south is making decisions for Scots law. That is the kind of discussion that people who are not in the legal profession are having. The common sense of ordinary hard-working people means that they cannot understand why criminal cases from the Scots legal system, of which we are justifiably proud, have to be heard outwith Scotland. They are asking themselves why there has to be another tier after the High Court in criminal cases, and I admit that I feel the same way.
The establishment of the UK Supreme Court under the Constitutional Reform Act 2005 has led to an increase in the potential for judgments in high-profile criminal cases in Scotland to be overturned on appeal. I believe whole-heartedly in justice and everyone’s right to appeal, but some of the decisions that have been made have upset the public in Scotland.
That state of affairs has been caused by a quirk of various acts since devolution. Within the UK, Scots law is no longer on an equal footing with the law in the rest of the nation states of the union. People who know more than I do have said as much. Brian McConnachie QC, who is vice-chairman of the Faculty of Advocates criminal bar association, said:
“It’s difficult to argue that we should have something different here than in England.”
I agree with some of the recommendations of Lord McCluskey’s review group. It believes that the High Court of Justiciary should remain the final court of appeal in Scottish criminal cases, and that an appeal to the Supreme Court should require the granting by the High Court of a certificate that the case raises a point of law of general public importance. It also believes that it is not appropriate that the Supreme Court be required by statute to apply the test of miscarriage of justice in Scottish criminal appeals. My simple ideal of the law tells me that those are good ideas for Lord McCluskey to proceed with.
The Scots legal system is one of the mainstays of Scottish life. It was a part of Scotland before the union, it has been a part of Scotland during the union and it will be an important part of Scotland after the union. However, the debate is about the current situation and the quirk that means that Scotland is the only part of the UK in which a case can bypass the High Court and be heard in the Supreme Court. This is not a discussion just for the chamber or the legal profession; it is one that Scots are having the length and breadth of the country. They believe that the current situation is not proper and that something has to be done about it.
The public believes and the cabinet secretary is correct to say that the distinctiveness of Scots law has been at the heart of our national identity in civic society. I would go so far as to say that our Parliament exists because Scots law retained its independence from the early years of the union until now.
As part of my example about why we should be careful to take the public along with us, I will use someone as simple as my wife’s aunt—[Laughter.] I do not mean simple in that way. I mean that the discussion or argument is simple.
She keeps phoning up my wife to ask why that court down south is making decisions for Scots law. That is the kind of discussion that people who are not in the legal profession are having. The common sense of ordinary hard-working people means that they cannot understand why criminal cases from the Scots legal system, of which we are justifiably proud, have to be heard outwith Scotland. They are asking themselves why there has to be another tier after the High Court in criminal cases, and I admit that I feel the same way.
The establishment of the UK Supreme Court under the Constitutional Reform Act 2005 has led to an increase in the potential for judgments in high-profile criminal cases in Scotland to be overturned on appeal. I believe whole-heartedly in justice and everyone’s right to appeal, but some of the decisions that have been made have upset the public in Scotland.
That state of affairs has been caused by a quirk of various acts since devolution. Within the UK, Scots law is no longer on an equal footing with the law in the rest of the nation states of the union. People who know more than I do have said as much. Brian McConnachie QC, who is vice-chairman of the Faculty of Advocates criminal bar association, said:
“It’s difficult to argue that we should have something different here than in England.”
I agree with some of the recommendations of Lord McCluskey’s review group. It believes that the High Court of Justiciary should remain the final court of appeal in Scottish criminal cases, and that an appeal to the Supreme Court should require the granting by the High Court of a certificate that the case raises a point of law of general public importance. It also believes that it is not appropriate that the Supreme Court be required by statute to apply the test of miscarriage of justice in Scottish criminal appeals. My simple ideal of the law tells me that those are good ideas for Lord McCluskey to proceed with.
The Scots legal system is one of the mainstays of Scottish life. It was a part of Scotland before the union, it has been a part of Scotland during the union and it will be an important part of Scotland after the union. However, the debate is about the current situation and the quirk that means that Scotland is the only part of the UK in which a case can bypass the High Court and be heard in the Supreme Court. This is not a discussion just for the chamber or the legal profession; it is one that Scots are having the length and breadth of the country. They believe that the current situation is not proper and that something has to be done about it.
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...