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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)

Ewing, Annabelle SNP Mid Scotland and Fife Watch on SPTV

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 well the case of Donoghue v Stevenson, which my colleague George Adam brought up. I did not expect to hear about that case today, but I guess that that is just one of those things.

As a lawyer, the starting point for me in the debate is the fact that the Scottish legal system is independent, even if other areas of life in Scotland are still to catch up—although I firmly believe that that will happen before long. As a Parliament, we have a duty to do what we can to preserve the integrity of our legal system and to ensure that it works in a coherent way.

I want to deal directly with the point that Johann Lamont—who is moving her chair—raised. The debate is not some exercise in constitutional navel gazing, nor is it a discussion of an issue that has no impact on the real lives of hard-working people, as my colleague mentioned. It is a debate that deals directly with the operation and the efficiency of our legal system, which is important to all of us.

I very much welcome the comprehensive report that the independent review group led by Lord McCluskey has provided. As the cabinet secretary said, the Scottish Government has accepted the report’s recommendations, and I understand that the Lord Advocate has written to the Scotland Bill Committee to set forth the kind of provisions that should be included in the Scotland Bill if the recommendations are to be implemented. Kenny MacAskill said that he is now progressing matters in his capacity as Cabinet Secretary for Justice.

As we have heard, one of the key recommendations concerns certification; specifically, it states that an appeal from the High Court of Justiciary to the UK Supreme Court should be competent only when the High Court has granted a certificate that the case raises a point of law of general public importance. That will deal with the anomalous situation in which certification is required as a matter of principle in the other UK jurisdictions, even if there are exceptions in certain cases. As a general rule, allegations of convention rights incompatibilities that occur elsewhere in the UK do not reach the Supreme Court unless there is certification.

That goes back, as Alison McInnes mentioned in a slightly different context, to the fact that the House of Lords was the final court of appeal for criminal matters for those other jurisdictions, which is not the case in Scotland as enshrined in the acts of union. When the Human Rights Act 1998 was passed, the certification rule was implicitly extended to cover compatibility cases in the other UK jurisdictions.

However, even if that was not the case, and there was suddenly no certification system in the other UK jurisdictions—as I understand it, there has been no significant attempt to abolish that requirement in the rest of the UK—it would still be necessary, in my view and the view of the McCluskey review group, to ensure that the High Court’s historical position as the final court of criminal appeal in Scotland was preserved given that we have an asymmetrical set-up in the UK.

Paragraph 41 on page 15 of the review group’s report states:

“In particular, we seek to ensure that the Scottish criminal justice system, unique amongst the constituent systems of the UK in its historical independence from the apex criminal appeal court for the rest of the UK, should not now, in the area of Convention rights, become more subject to interference from that apex court than the courts of these other systems.”

That states the review group’s position on certification very clearly. There has been interference from the UK Supreme Court, and we need to do something about it now that the opportunity has presented itself in the form of the Scotland Bill.

Concerns have been expressed about a possible diminution of the individual’s rights if such a certification system were to be introduced in Scotland, but I simply do not agree. Those concerns are based on a misunderstanding of the UK Supreme Court’s role. The High Court in Scotland has always been the final court of appeal in criminal matters. It is the competent court, and it is perfectly capable of continuing its centuries-old role. It was never intended that the UK Supreme Court should have jurisdiction over Scots criminal law decisions as if it were a new and final court of appeal in Scottish criminal cases, as the review group has pointed out.

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Meeting of the Parliament 27 October 2011

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