Hansard

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 interim report in June and we are now in a position to look at Lord McCluskey’s final report.

I add my appreciation to that of others for the work that Lord McCluskey and his team did in producing the report. Disagreements on the detail of the report’s conclusions are inevitable, but the report undoubtedly provides a clear and helpful analysis of the issues that are at stake. Unfortunately, many of the Scottish Government’s pronouncements have been less than helpful. To avoid doubt, we should be clear that the McCluskey review endorsed the proposition that the Supreme Court should retain a jurisdiction in respect of appeals in criminal cases from Scotland when those cases raise questions of compatibility with convention rights.

The UK Supreme Court acts as a buffer between the High Court and the European Court of Human Rights. It allows human rights issues in controversial criminal cases to be resolved in the UK before the time and resources of an already overburdened international institution are demanded. The cabinet secretary has claimed that referring cases from Scottish courts directly to the European Court of Human Rights would be simpler. Perhaps he should remember that the court in Strasbourg has a backlog of about 150,000 cases and a three to four-year waiting time. If we slowed access to justice through such an approach, we could find that more cases were eligible for appeal.

When the UK court rules on Scottish cases, it does not judge on the facts of the case or release a proven or not proven verdict. Instead, its remit is restricted to particular points in connection with the European convention on human rights, so the constitutional system provides a more immediate process for interpreting the human rights rules that the ECHR establishes more conveniently than going directly to the European court in Strasbourg.

The motion rightly mentions the Scottish legal system’s historic independence and the need to maintain that. I doubt whether any member from any party disagrees with that. However, I gently remind the cabinet secretary that, just as the proudly independent Scottish legal system historically did not exist in a vacuum, so our justice system today must be seen in the context of our national and international legal obligations. That the High Court of Justiciary has a relationship with the UK Supreme Court and the European Court of Human Rights in Strasbourg does not in itself imply that Scotland’s legal system is in some way bereft of integrity. Rather, it shows that Scotland and her legal system is an independent part of the United Kingdom and the European Union.

As the Law Society recognises, Scots law has always been outward looking, both in providing a model for other legal systems to follow and in looking to other legal systems for good practice and inspiration. We believe that our legal system is strong because of that willingness to learn from other systems, and the SNP ought to be careful that its political attempts to reduce the UK Supreme Court’s influence on Scotland do not come at the cost of an effective legal system that provides fair access to justice for all.

That said, we fully recognise the need to tidy up how the UK Supreme Court engages with Scots law in determining points that relate to human rights. It is to be welcomed that the report underlines the need for coherence in the way in which human rights laws are applied north and south of the border. The UK Government has made it clear that it will review Lord McCluskey’s recommendations carefully. The Advocate General, Lord Wallace, has met Lord McCluskey to discuss his report and I understand that he will do so again. In clear contrast to the negativity and bickering from the Scottish Government, Her Majesty’s Government at Westminster has shown that it is prepared to take a responsible and constructive path to ensuring that the integrity and effectiveness of Scots law are respected and maintained.

As we have seen, the review group recommends in its report that the UK Supreme Court should have the power to rule on human rights issues that arise from Scottish criminal law cases. However, it argues that that should occur only if the High Court of Justiciary permits the appeal. Permission would be granted through a certificate that notes that the case raises a point of general public importance. The Government, which has done all that it can to undermine the integrity of the UK Supreme Court in recent months, has welcomed the proposal with open arms. We in this part of the chamber believe it to be an unnecessary proposal that might have far-reaching negative consequences for access to justice in Scotland.

The Law Society has also made it clear that it disagrees with the recommendation. Its point is that individuals, whether they are in Scotland or in other parts of the UK, have rights that are particular to the individual and they should not be assessed against such a test. The SNP’s dogmatic political desire to narrow the UK Supreme Court’s scope on Scottish matters should not be pursued at the price of restricting full access to justice for Scots.

As I said, we welcome the work that Lord McCluskey and his team have done on the role of the Supreme Court in relation to Scots law, but we do not accept the spin that the Scottish Government has put on it. We will continue to fight to maintain the integrity of Scottish criminal law, but firmly within the context of Scotland’s place in the United Kingdom.

I move amendment S4M-01133.1, to leave out from “this position” to second “criminal cases” and insert:

“the position of the High Court of Justiciary should be maintained in its rightful place at the apex of that system”.

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