Hansard

Thank you, convener. On my far right is Fraser Gibson, who is head of the appeals division in the Crown Office; to my immediate right is Elspeth MacDonald, who is head of the constitutional and parliamentary secretariat and to my immediate left is Alison Coull, who is in the constitutional and civil law division.As the convener noted, I wish to make a few opening remarks, after which I will be delighted to answer any questions as best I can.I will summarise the Scottish Government’s position on UK Supreme Court jurisdiction, and then speak to the evidence that I submitted last week in advance of today’s session, which seeks to implement that position.As has already been mentioned, Scotland has a unique legal tradition that is many centuries old and is proudly independent. The existence of a distinctive Scots law predates the treaty and acts of union by centuries. The distinctiveness of Scots law is part of our heritage and until 1999 the High Court of Justiciary sat in its rightful place at the apex of the Scottish criminal justice system.Since devolution, the jurisdiction of the Judicial Committee of the Privy Council and the UK Supreme Court has developed, and has had many effects that were not foreseen. With that in mind, I welcome the reports prepared by Lord McCluskey’s independent review group. The group’s advice is objective and measured and has been informed by eminent experts. It provides a sound and sensible basis for progressing. The review group’s analysis is considered: it recognises the need for change, and puts forward measured and achievable suggestions for how we can bring about that change.I will summarise briefly the group’s key recommendations. First, the UK Supreme Court should be limited in jurisdiction, ruling only on the interpretation of convention rights and not on any remedy for breach of those rights. Secondly, an appeal to the UK Supreme Court should be competent to proceed only where a point of general public importance is judged to be raised. Thirdly, provisions for appealing to the UK Supreme Court should not be artificially limited to acts of the Lord Advocate, but should be extended to acts of all public bodies, including the Scottish ministers.The Scottish Government supports those recommendations and wishes them to be implemented. I note that the Lord President, speaking on behalf of the Scottish judiciary, shares that view and has come out in support of what is proposed, particularly on certification.I note that others have different views, particularly on certification, but we must remember that Scotland has an independent legal system. We must trust the High Court of Justiciary to consider the merits of cases and rule accordingly, just as the courts of appeal in the other constituent parts of the United Kingdom are trusted. In that way, the High Court and the UK Supreme Court will both be able to fulfil their respective functions.That is the Scottish Government’s position. I turn now to the proposals to implement the McCluskey group’s recommendations. What is required is a change to what is proposed in the Scotland Bill. The Advocate General for Scotland has published provisions that we find problematic. They establish the UK Supreme Court as a court of general appeal within the Scottish criminal justice system and they do not effectively address the difficulties that were raised initially by the Scottish judiciary. Those difficulties were highlighted in our submissions to the Scotland Bill Committee in the previous parliamentary session, and they have been addressed and explored in detail by two expert groups: one for the Advocate General and one led by Lord McCluskey.The establishment of a general appeal without any filter mechanism could even exacerbate the original problem. We have developed alternative draft illustrative provisions in the form of a clause, which could replace clause 17 of the Scotland Bill. The committee may note that no distinction is made here between ECHR and EU law issues in criminal proceedings, and we see no grounds for making one following the Advocate General’s approach in the Scotland Bill thus far.With regard to delivering the McCluskey recommendations, we are proposing provisions that create a new avenue of restricted appeal to the UK Supreme Court from the High Court based on whether there has been an act by a public authority that is incompatible with convention rights or EU law. The issue before the court will be compatibility only.A prerequisite for such an appeal is that the High Court has issued a certificate confirming that the point that is raised is of general public importance. The High Court will give reasons for whether it grants that certification and, in addition, it will decide whether to grant leave to appeal.16:30 It may be that in some cases the High Court grants a certificate but does not grant leave. In such cases, it would be open to the UK Supreme Court to grant leave. The key point is that if the High Court does not grant a certificate, the Supreme Court has no powers to consider the matter. Thus, the High Court has the final say on the test of general public importance, as the Court of Appeal does in England and Wales. We have confidence that the High Court can be trusted to apply that threshold test. That practical measure will help to maintain the High Court’s traditional position at the apex of the Scottish criminal justice system.There are a number of other points. Appeals are time limited in line with those in England and Wales under relevant legislation. The proposal makes provision for lower courts to refer matters to the High Court for consideration prior to trial, and while normally appeals to the Supreme Court will go only after the conclusion of proceedings in the courts below, the High Court can exceptionally refer a question to the UK Supreme Court prior to that stage. The committee will note that we propose that the functions of the Lord Advocate and the Advocate General to refer cases where a point of general public importance is raised should be retained. The clause on the Advocate General in the Scotland Bill seeks to remove that power, but we accept that the Advocate General should retain that power to address concerns about ensuring consistent application of convention rights across the UK.We are clear that the UK Supreme Court’s role within the Scottish criminal justice system must be limited to declaring whether there has been a breach of convention rights or EU law. The Advocate General’s proposals provide the UK Supreme Court with all the powers of inferior courts and, in consequence, the power to affirm, set aside or vary orders, remit issues for determination by that court and order a new trial or hearing. That is unnecessary, as the courts below can be trusted—it is second nature for any court—to make decisions on compatibility with convention rights. What we propose is a sharper focus on the compatibility question, restricting the powers of the Supreme Court to ruling on compatibility and remitting the case to the High Court to decide effective remedy.I hope that this is a helpful run-through of what we propose. The committee will have noted that the matter of safeguarding the integrity of Scots criminal law was debated in the Parliament last week. I understand that, due to technical issues, a motion inviting the Parliament to endorse the recommendations was not voted on. When that vote is reconvened, which I understand will be tomorrow, I hope that we will see the Parliament join others, such as the Lord President of the Court of Session and Scotland’s senior judiciary, in endorsing the McCluskey group’s recommendations.That completes my opening remarks, convener. I am more than happy to take any questions.