Hansard

I declare an interest as a member of the Faculty of Advocates.

I welcome the findings of Lord McCluskey’s further report as part of the on-going debate about the UK Supreme Court and its relationship with the High Court of Justiciary. However, we should remind ourselves that the High Court of Justiciary’s position as the final court for determining criminal justice in Scotland was reaffirmed in section 124 of the principal piece of legislation on criminal procedure in Scotland, which was passed by the UK Parliament as recently as 1995.

As a member of the SNP, I would prefer Scotland to be a signatory to the ECHR with its own supreme court. Alas, that is not the situation we find ourselves in.

Much of the debate concerns the provisions of section 57 of the Scotland Act 1998, in particular subsection (2) and the assessment of whether the Lord Advocate in his acts has acted in a way that is incompatible with convention rights. From the passage of the Scotland Act 1998, the Judicial Committee of the Privy Council has been required to exercise a devolution jurisdiction, and the Lord Advocate has been required to act in a convention-compliant way, subject to the limited exceptions in section 57(3).

In practice, matters have become interrelated and confused. It is accepted by the UK Government, as well as the Scottish Government, that section 57 needs to be changed, and provisions to amend it are in the current Scotland Bill. However, although clause 17 of that bill removes the devolution issue label from acts and failures to act by the Lord Advocate, it talks about them instead as convention issues. In Lord McCluskey’s view, that simply changes the paperwork and not the substance. I find it hard to argue with his view.

Lord McCluskey believes that there ought to be parity between the High Court of Justiciary and the English courts with regard to appeals, and he recommends that only cases that raise a point of general public importance certified by the High Court should end up at the Supreme Court. The Supreme Court in England can act as a final court of criminal appeal, but that has never been the position in Scotland.

I will quote from paragraph 37 of Lord McCluskey’s final report:

“When the Human Rights Act was passed in 1998, the decision was implicitly taken that certification, required in most criminal proceedings, was still to be required in English cases even when the issue in the proposed appeal was one of compatibility with convention rights.”

If that is the practice in England, it should be so in Scotland too.

As the cabinet secretary said, the Lord President has this week commended the proposal that the High Court should be brought into line with the criminal division of the Court of Appeal in England and the Court of Appeal of Northern Ireland by the requirement of certification. That surely must carry some weight.

I turn to the recommendation that

“the Supreme Court should be limited to declaring whether or not there has been a breach of a Convention right and, if there has been, to saying why this is so.”

I agree with that proposal. The human rights of the accused should be the same in convention terms, be they in Edinburgh or Exeter, even if the practices and procedures of criminal law in those jurisdictions differ. As the Scottish Law Commission said in October 2010:

“There is no more reason why a particular feature of Scots criminal law need be the same as any feature of English criminal law in order to comply with the requirements of the Convention as there is that any feature of either system should be the same as a feature of Russian law to achieve that purpose.”

There are reservations in the legal profession about the proposals, not least from the Law Society of Scotland. It opposes the idea of mandatory certification by the High Court of issues of general public importance before a case may proceed to the Supreme Court:

“Requiring a certificate of public importance could raise the situation where some people are restricted from appealing because the contravention of their human rights does not meet that test and this, we feel, could restrict access to justice.”

That argument has an attraction—we should avoid a hierarchy of rights—but I am not sure how many cases would be affected in practice and, moreover, it risks putting us out of step with the rest of the UK. If there is a need to review the nature of the test, it should be addressed across all jurisdictions in the UK.

I turn to the question whether the Supreme Court should be able to hear appeals where an appeal was refused by the High Court. It is important to bear it in mind that Lord McCluskey is actually saying that the Supreme Court should have the power to grant or refuse leave but that it should have no power to consider granting leave unless a certificate that the matter is of general public importance has been granted by the High Court. If the Supreme Court has an unfettered jurisdiction to hear appeals, inevitably its position is as the final arbiter in the system, which has the potential—I use the word advisedly—to damage the integrity of the Scottish criminal justice system.

In the desire to allow the Supreme Court to have such an unfettered right, there is among some people an inherent criticism of some recent High Court decisions. The answer to that is not to imply that the Supreme Court knows better but to ensure that convention issues remain at the forefront of judicial culture, tradition and training in Scotland’s courts. However, even as a fully independent nation, we should never be afraid to learn from other jurisdictions while respecting our own traditions.

Finally, I turn to the recommendation to refer devolution issues to the Supreme Court when they raise issues of compatibility. I agree that that is a good proposal. I am glad that the cabinet secretary accepts that. As I recall, that was one of the criticisms of Justice Scotland in a briefing at the time of Lord McCluskey’s first report. I welcome the report.