Committee
Scotland Bill Committee 01 November 2011
01 Nov 2011 · S4 · Scotland Bill Committee
Item of business
Scotland Bill
Paul McBride
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I am not suggesting that we are being discriminated against; I am just saying that we are not being treated on the same playing field. We should bear in mind that, when the Supreme Court is deciding on Scottish issues, there is an in-built majority of non-Scottish judges in every case. I am not suggesting that they do not know Scots law or get things right, but one has to recognise the fact that when we go to the Supreme Court down south we are faced with five judges, three of whom are English—or from Wales or Northern Ireland—and two of whom are from Scotland. Regardless of the size of that court, there will always be an in-built majority of judges who are not Scottish and, although I am not saying that I agree with them, some people might think that that is not necessarily the correct way forward. A great deal depends on how we approach the Human Rights Act 1998. There is a big issue about whether we should be signed up to the act at all, whether it should be amended and whether there should be a British or indeed a Scottish bill of human rights, but we are where we are. As I understand it, the proposal by Lord McCluskey is fairly modest; it simply puts the status and integrity of our court in the same position as that of the court down south. Can you imagine someone saying to the Court of Appeal down south, if it said that they were not getting certification, that it did not really matter because they could just go to the Supreme Court anyway? People would be furious. One imagines that the Lord Chief Justice would write letters to everybody and there could be strikes and all sorts of problems. People seem to be far more dogmatic about such issues down there.The only thing that is happening here is a reasonable debate about a very young court that has been set up by politicians. I believe that politicians are allowed to comment on what happens in that court, despite what some people may say. It is a young court that is developing its jurisprudence, and this committee is entitled to examine the way in which it is developing it.15:00
In the same item of business
The Convener (Linda Fabiani)
SNP
Belatedly, I say good afternoon to everyone. Welcome to the Scotland Bill Committee’s ninth meeting in session 4. I remind those present that, unless they ha...
Paul McBride QC
To save a little time, I did not plan to make an opening statement. I served on the United Kingdom working group that the Advocate General for Scotland set u...
Adam Ingram (Carrick, Cumnock and Doon Valley) (SNP)
SNP
Welcome to the meeting, Mr McBride. You have stated your position succinctly. As you endorse Lord McCluskey’s recommendations, what is your view of the Lord ...
Paul McBride
As I understand it, the Lord Advocate has put forward several proposals and amendments, and parliamentary draftsmen will obviously deal with some of the issu...
Adam Ingram
SNP
Certification is controversial. Critics such as the Law Society of Scotland oppose certification on two grounds. The High Court of Justiciary has been critic...
Paul McBride
It is dangerous for the Law Society to proceed on the basis of what appears to be a couple of individual controversial cases—presumably the Cadder case and t...
Richard Baker (North East Scotland) (Lab)
Lab
On that point, are you confident that, if there had been a certification procedure in place in Scotland, the High Court would have issued such a certificate ...
Paul McBride
I appreciate what you are saying. I spent the first 10 years of my career at the bar in front of the court of appeal, and we can never second-guess what the ...
James Kelly (Rutherglen) (Lab)
Lab
You indicated that there was quite a lot of overlap between the McCluskey recommendations and the Edward group, on which you served. What was the Edward grou...
Paul McBride
The Edward group never really got to look at certification; the issue was not a direct part of the group’s remit. We were primarily concerned with whether pe...
James Kelly
Lab
I understand what you are saying, but I just want to be clear about how the Edward group considered the certification issue. I understand that two submission...
Paul McBride
The report’s conclusions show that we addressed certification. The group was primarily devoted to the issue of whether there should be access to the Supreme ...
Stewart Maxwell (West Scotland) (SNP)
SNP
We heard evidence last week from the Law Society of Scotland and the Faculty of Advocates, which seemed to argue—I hope that I do not misrepresent them—that ...
Paul McBride
That is a classic lawyer’s semantic distinction—it really does not mean anything at all. The real question is: if you live in Scotland, do you effectively ha...
Joan McAlpine (South Scotland) (SNP)
SNP
Mr McBride, you will be aware of the letter that the committee received last week from Lord Hamilton, the Lord President, generally supporting Lord McCluskey...
Paul McBride
It is a very significant letter. I had thought that such a letter might have been written sooner, but the judge correctly decided to wait for the publication...
Joan McAlpine
SNP
How significant would it be if the Lord President’s recommendations were ignored in the Scotland Bill, which we are considering and which is going through at...
Paul McBride
We then stray into a matter of politics—and I am very conscious that the issue has, to a degree, become a political one.I would have thought that it would be...
Willie Rennie (Mid Scotland and Fife) (LD)
LD
I am struggling to understand what practical difference certification would actually make. Surely an issue of human rights and a failure to meet our internat...
Paul McBride
It is very important to have certification because, if we do not have it, people will simply be able to bypass the highest court in this land, which has been...
Willie Rennie
LD
We are not really talking about consistency. The Supreme Court plays a role in criminal matters in Northern Ireland, Wales and England, but we are not talkin...
Paul McBride
It is very difficult to predict that. I was not on Lord McCluskey’s independent review group, and he might have access to those statistics, but I made some i...
David McLetchie (Lothian) (Con)
Con
I think that you said that we cannot have a process that allows us to bypass the highest court in the land. However, we are not talking about a bypass, becau...
Paul McBride
If someone goes to the appeal court but their appeal against conviction is refused and they then apply for leave to appeal to the Supreme Court but the appea...
David McLetchie
Con
I find one thing slightly puzzling in terms of the attitudes to the issue. Time and again we hear about the unique system of Scots law, how it must be preser...
Paul McBride
I am not suggesting that we are being discriminated against; I am just saying that we are not being treated on the same playing field. We should bear in mind...
David McLetchie
Con
The McCluskey report said that the number of judges in the Supreme Court is not a problem.
Paul McBride
It is not a problem, although there is perhaps an issue of perception. When I used to appear in the predecessor of the Supreme Court—the Judicial Committee o...
David McLetchie
Con
Do you agree with the proposition that many of the difficulties that are under consideration arise because the Lord Advocate is not only head of the prosecut...
Paul McBride
No, I do not think so. The Lord Advocate has made suggestions, understandably and correctly, about removing his role from certain parts of the legislation. I...