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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)

McInnes, Alison LD North East Scotland Watch on SPTV

I, too, welcome the opportunity to debate the review group’s report and set it in the context of the wider debate. I find it interesting that, after the Government’s refusal for so long to engage with the Scotland Bill process, it is now taking to scheduling debates in the Parliament in the hope of encouraging ever more amendments to it.

It is difficult to know where to begin with the Government’s motion. I am drawn immediately to the reference to

“restoring the High Court to its rightful place at the apex of”

the Scottish legal system. I agree that the High Court should remain as the final court of appeal in Scottish criminal cases, but the key word is “remain”. I do not believe that its position has ever been in doubt. There are certainly some issues about the precise way in which our legal system interacts with the Supreme Court and it is right that that relationship should be clarified. I will touch on those issues in a moment, but first I must again thank Lord McCluskey and his group for their work on the report. Hearing additional viewpoints to inform the debate is always helpful. However, I must repeat two points that I made in our debate on the initial report in June.

First, let us remember that the report was commissioned by the Government as an attempt to justify its intemperate comments towards the Supreme Court on the back of the Nat Fraser ruling. That the report has singularly failed to endorse the Government’s call that the Supreme Court should play no role in Scotland should serve as a reminder to both Kenny MacAskill and Alex Salmond that they ought to think a little before they shout. Secondly, I am still unsure why we seem to be giving the report the same weight and significance as the report of the Advocate General’s expert group, which was put together over many months on the back of evidence taking and discussions with a wide range of experts and interested parties.

That said, Lord McCluskey’s report raises a number of relevant issues. I am particularly interested in his recommendation that we widen the scope for referrals to the Supreme Court beyond the acts or omissions of the Lord Advocate and that appeal to the Supreme Court be open, regardless of which public authority is alleged to have violated a person’s convention rights. If a practical way can be found to incorporate such a change, the move seems eminently sensible. The Lord Advocate is not the sole point of contact for ensuring that accused people’s convention rights are protected and I hope that we can consider and discuss this issue further as the Scotland Bill progresses. I was interested to hear Kenny MacAskill support such a change earlier this afternoon. I am also content with the report’s recommendation that the Supreme Court remit cases in which it has found a convention breach right back to the High Court for it to determine the appropriate disposal.

However, I cannot agree with Lord McCluskey’s recommendation on certification. I recognise that this tricky issue merits debate but, so far, there have been inconsistencies in comparisons. It has been mentioned more than once that a system of certification already exists in England and Wales and Northern Ireland but, as members of the Advocate General’s expert group made clear in response to Lord McCluskey’s group, any such comparison is flawed because, in those jurisdictions, the Supreme Court is the final court of appeal for all aspects of criminal law. Of course, that is not the case in Scotland.

The Advocate General’s group also noted the many exceptions to the certification system that are in place in the rest of the UK.

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Meeting of the Parliament 27 October 2011

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