Chamber
Meeting of the Parliament 23 February 2011
23 Feb 2011 · S3 · Meeting of the Parliament
Item of business
Cadder Judgment
Robert Brown raises three matters. Given the unique position of Scotland’s law, it is manifestly wrong that the Scottish Government does not have even the right to be represented at the European court. That is a fundamental problem. Given our distinctive legal system, which has evolved over centuries, it cannot be right that we cannot be present at decisions. My Government colleagues and I will continue discussions with the Advocate General for Scotland, but we have expressed our view, as I said.
Mr Brown will be well aware that guidance is issued by the Lord Advocate and not at my behest. I have no right to interfere with an independent and impartial Lord Advocate. The day that a Cabinet Secretary for Justice seeks to interfere with the workings of the Lord Advocate, we will have cause for concern.
When the Lord Advocate issued guidance not in 2009 but in 2010, I received representations from solicitors and bar associations that thought that she had gone too far and which wanted the guidance to apply not to summary cases but only to solemn matters. However, the Lord Advocate has been shown to have acted appropriately and wisely, for which we owe her a debt of gratitude.
At the end of the day, I cannot comment on Cadder as it is still a live matter. The fundamental position is this: human rights are a matter of balance. Everyone accepts that people have a right not to be mistreated; the Scottish court system provides for that. My position is to stand behind measures and manners, and individuals—not just the High Court of Justiciary with its seven judges, but eminent Queen’s counsel, whether Paul McBride or others.
Within the Scottish legal system, we had not only a requirement for corroboration, but tape-recorded and videoed admissions. This was not a case, as in Turkey, of a 16-year-old being tried on terrorism charges. Nonetheless, the result is that many men who have been charged with serious sexual offences are making it much more difficult for the Crown to bring a prosecution and for victims of crime to receive justice. That I regret. I make no apology for regretting that, or for saying that we acted as we had to. I wish that we had not had to. If only the UK Supreme Court had stuck by the law of Scotland and not overturned hundreds of years of Scots law.
Mr Brown will be well aware that guidance is issued by the Lord Advocate and not at my behest. I have no right to interfere with an independent and impartial Lord Advocate. The day that a Cabinet Secretary for Justice seeks to interfere with the workings of the Lord Advocate, we will have cause for concern.
When the Lord Advocate issued guidance not in 2009 but in 2010, I received representations from solicitors and bar associations that thought that she had gone too far and which wanted the guidance to apply not to summary cases but only to solemn matters. However, the Lord Advocate has been shown to have acted appropriately and wisely, for which we owe her a debt of gratitude.
At the end of the day, I cannot comment on Cadder as it is still a live matter. The fundamental position is this: human rights are a matter of balance. Everyone accepts that people have a right not to be mistreated; the Scottish court system provides for that. My position is to stand behind measures and manners, and individuals—not just the High Court of Justiciary with its seven judges, but eminent Queen’s counsel, whether Paul McBride or others.
Within the Scottish legal system, we had not only a requirement for corroboration, but tape-recorded and videoed admissions. This was not a case, as in Turkey, of a 16-year-old being tried on terrorism charges. Nonetheless, the result is that many men who have been charged with serious sexual offences are making it much more difficult for the Crown to bring a prosecution and for victims of crime to receive justice. That I regret. I make no apology for regretting that, or for saying that we acted as we had to. I wish that we had not had to. If only the UK Supreme Court had stuck by the law of Scotland and not overturned hundreds of years of Scots law.
In the same item of business
The Deputy Presiding Officer (Alasdair Morgan)
SNP
The next item of business is a statement by Kenny MacAskill on the Cadder judgment. The cabinet secretary will take questions at the end of his statement, so...
The Cabinet Secretary for Justice (Kenny MacAskill)
SNP
On 26 October 2010, the United Kingdom Supreme Court issued its decision in the case of Cadder v Her Majesty’s Advocate. The case considered the law and prac...
Richard Baker (North East Scotland) (Lab)
Lab
I thank the cabinet secretary for his statement. We are now beginning to have a clearer understanding of the impact of the Cadder judgment on hundreds of vic...
Kenny MacAskill
SNP
Richard Baker raises a variety of issues. First, with regard to the Glasgow Bar Association, I would not seek to be too hard on an agency of which I was once...
The Deputy Presiding Officer (Trish Godman)
Lab
Some members have not pressed their request-to-speak buttons—I remind them to do so now. I ask for short questions and shorter answers from the cabinet secre...
John Lamont (Roxburgh and Berwickshire) (Con)
Con
I thank the cabinet secretary for the advance copy of his statement. It is clear that the Cadder judgment is having a devastating effect on the Scottish just...
Kenny MacAskill
SNP
I have had meetings with Ken Clarke. A variety of issues is involved. We as a Government accept that Scotland is in an anomalous position in relation not sim...
Robert Brown (Glasgow) (LD)
LD
If 867 cases—some of which are very serious—cannot be prosecuted, that is a great public concern. However, the cabinet secretary seems to be in denial about ...
Kenny MacAskill
SNP
Robert Brown raises three matters. Given the unique position of Scotland’s law, it is manifestly wrong that the Scottish Government does not have even the ri...
The Deputy Presiding Officer
Lab
We move to open questions. Members will have to put a question, not a preamble and a question.
Nigel Don (North East Scotland) (SNP)
SNP
Does the cabinet secretary share my view that, if we are to protect Scottish jurisprudence, we need to have decisions that are made by Scottish judges in Sco...
Kenny MacAskill
SNP
Absolutely. As I mentioned, the clear fact is that the UK Supreme Court is getting by the back door matters relating to the criminal law of Scotland that it ...
James Kelly (Glasgow Rutherglen) (Lab)
Lab
When we passed the emergency legislation in October, the financial memorandum set out that the bill would cost £30 million and require 500 police officers to...
Kenny MacAskill
SNP
The principal point relates to money. As we made clear at the time, the increased costs to the legal aid budget would not come out of budgets such as health ...
Mike Rumbles (West Aberdeenshire and Kincardine) (LD)
LD
How many suspects have been detained for 12 or 24 hours under the new powers of detention that the cabinet secretary forced through Parliament last year with...
Kenny MacAskill
SNP
I do not have the precise number, but the number of people who have been detained beyond the 12 hours has been very few. As Mr Rumbles well knows, these matt...
Mike Rumbles
LD
How many?
Kenny MacAskill
SNP
Recently, I received a letter from the United Kingdom Government, in which the Liberal Democrats are a partner, that asked the Scottish Government to make le...
Mike Rumbles
LD
He has not got a clue.
The Deputy Presiding Officer
Lab
Mr Rumbles.
Kenny MacAskill
SNP
We will accede to the request of the Government south of the border. If Mr Rumbles disagrees with that, he should take up the matter with his ministerial col...
Mike Rumbles
LD
On a point of order, Presiding Officer. I asked a simple, factual question on how many people had been detained. The minister refuses to answer.
The Deputy Presiding Officer
Lab
That is not a point of order, Mr Rumbles. If you read the Official Report, you will find that the minister first said that he did not have the numbers.
Stewart Maxwell (West of Scotland) (SNP)
SNP
Will the cabinet secretary put into context the impact of the Cadder decision on the 867 cases? He said that we are talking about a relatively small percenta...
Kenny MacAskill
SNP
Because of the prescient actions by the Lord Advocate, the numbers were restricted initially, it was thought, to 3,500 and then to 867. That is a very small ...
Cathie Craigie (Cumbernauld and Kilsyth) (Lab)
Lab
The cabinet secretary has advised us that the number of cases unable to proceed stands at 867—867 cases in which charges have been dropped, some very serious...
Kenny MacAskill
SNP
The answer is that I cannot provide that information. That is information relative only to the Crown. I have no doubt that the Crown would be more than happy...
Dave Thompson (Highlands and Islands) (SNP)
SNP
If as a result of Cadder the police cannot ask simple questions at the locus of an incident, is the cabinet secretary not concerned that they will have to ta...
Kenny MacAskill
SNP
That is a valid point and it is part of the reason why the Lord Advocate has acted appropriately and sought to have these son of Cadder matters removed. As a...
Bill Butler (Glasgow Anniesland) (Lab)
Lab
When Parliament passed the emergency legislation after the Cadder judgment, the cabinet secretary quite rightly said that he would keep Parliament fully info...