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Committee (2nd Day) (Continued)

Part of Scotland Bill – in the House of Lords at 4:45 pm on 2nd February 2012.

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Photo of Lord McCluskey Lord McCluskey Crossbench 4:45 pm, 2nd February 2012

My Lords, this debate is scheduled to finish at 7 pm, which gives us slightly over two hours. That is unfortunate because on a Thursday afternoon, particularly when the House does not sit on the Friday, there are few Scots to be found after this hour, and I fear that even some of those who are smiling at me now will shortly depart for trains and planes to take them north to what no doubt is important business. I have tried to make my contribution by withdrawing 12 of the amendments I had down on the Marshalled List before the debate today, but it is a pity that we lost an hour at the beginning of the day to the debate occasioned by the Leader of the House having to deal with issues of privilege in another place.

I am quite certain that we are all agreed that Clause 17 will have to go, so I need not spend too much time on the detail, but I want to say something about the background. Unfortunately, because of the grouping of the amendments, for what I understand are good technical reasons, we have to deal with a large number of quite different matters all at the same time, so I am afraid that I shall have to rise to my feet more than once in order to make separate submissions in relation to several different matters.

Clause 17 was added in another place at the Report stage. No explanation about it was given at that point, although the Minister and the Opposition said a few words a little later at Third Reading. The history of the matter is this. The Scottish judiciary first raised issues in relation to the exercise by the Supreme Court of its jurisdiction, which had been conferred in a late provision that was added to the Scotland Act 1998. Calman did not deal with it, but the Advocate-General for Scotland wisely appointed an expert committee under Sir David Edward and others, including the noble and learned Lord, Lord Boyd, to deal with the matter. The committee went on to produce an excellent report so far as it went-I believe that we came to a logically better conclusion than can be shown in Clause 17, and I think the Minister accepts at least some of the points that have been made in relation to that.

The Report stage to which I have referred was taken on 22 June or thereabouts. The first report of the review group, which I had the honour to chair, was published on 24 June, so at that point we had had no opportunity to comment on the clause. I had a group of very distinguished people under my chairmanship: you could not have a more learned lawyer in the law in Scotland today than Sir Gerald Gordon, who is the finest scholar of Scots law probably for centuries; Charles Stoddart has massive experience as an author and as director of judicial training in Scotland; and Professor Neil Walker has an international reputation on constitutional law and practice. Perhaps I may say for clarification that when the First Minister asked me to chair the group, he started to say that he would give me the names of the people who would join it. I said, "No, I will give you the names", and I proceeded to give him these names apart from that of Professor Walker, whom I did not know. The First Minister said, "May I suggest Professor Walker?" and I said, "Give me 24 hours and I will say yes or no". I looked into Professor Walker's background and consulted my colleagues, and we decided that he would be a valuable member of the group, which indeed he proved to be.

We had no axe to grind whatever. We almost resigned over the appalling remarks made by the First Minister and the Secretary for Justice about the Supreme Court justices at the time, but we decided that it was our duty to do our best because, while that row would pass, these provisions might last for a very long time.

We had only three weeks to produce our first report, and at that stage we could not consult widely. However, we had until mid-September to produce our second report and we then did consult widely. We put the tentative conclusions we had reached in the first report out to consultation and we met with many parties. The report is now available on the Government website, and it makes it clear that many people responded to us. A number of interviews are reproduced. I personally met with a number of senior judges in Scotland, and on more than one occasion with the Advocate-General. He was always courteous enough to listen with great care to what we had to say and, indeed, to respond positively to a number of things.

In short-for the moment, I am touching only the high spots-we agreed that it was right and proper to retain the jurisdiction of the Supreme Court in relation to human rights issues hitherto governed by the Human Rights Act. I think that we are all agreed about that and I do not know of anyone in this Committee who thinks differently.

We also agreed with Sir David Edward's group-I think that the Government have accepted this-that we should define and restrict the jurisdiction of the Supreme Court in Scottish criminal cases to determining a human rights issue and then remitting the matter to the Scottish High Court to deal with the consequences. I think that we are also agreed that vires issues, about the competence of Scottish Ministers and the Scottish Parliament, should be dealt with as devolution issues. We are particularly pleased that the Government have recognised that the Supreme Court will remit to the High Court. That means that the High Court is essentially to retain its centuries-old role as the apex or final court in regard to Scottish criminal cases.

There are a number of additional proposals which I shall touch on but deal with separately slightly later on in order to avoid speaking for a very long time. One relates to the certification of cases for the Supreme Court; in other words, to give the High Court a power to give or withhold a certificate, that certificate being a prerequisite before the Supreme Court can consider an appeal in a criminal case.

We have also to look at the timescale which is allowed for leave to appeal against a decision of the High Court. We say that it should normally be at the end of the case but that there may be exceptions. I shall have to look at that in a little more detail later on. We were also anxious that the Lord Advocate and the Advocate-General for Scotland should have certain rights in getting cases before the Supreme Court, perhaps even before the end of the case.

In particular, we did something which was not entirely popular with the Scottish Government-in fact, we were not very popular when we said that the jurisdiction of the Supreme Court should be retained-which was to advise that Clause 17 was far too restrictive, as had been Section 57 of the Scotland Act, in that it related only to acts or failures to act of the Lord Advocate. We advocated replacing that with a right of the High Court to consider breaches or possible breaches of the Human Rights Act by any public authority. That could include even a criminal prosecution taken by a person other than the Lord Advocate. In the famous Sweeney case, which was prosecuted essentially by the victim of the rape, after the Lord Advocate-who was at that point the noble and learned Lord, Lord Mackay of Clashfern-stood aside, I am not entirely sure that the victim in the Sweeney case would have been regarded as a public authority for those purposes. I do not know, and I do not ask anyone to express an opinion on that matter, particularly at this late hour of the afternoon.

Clause 17, inspired by Sir David Edward's group's report, went some of the way and we believe that we have just followed it to its logical and proper conclusions. We have no criticism of what Sir David and his colleagues said in that report. I drafted my amendments in September and October 2010. I withheld them for a long time in the hope that the Government would come forward with their amendments, but when they did not do so, I put mine in.

Having attended the meeting of the Scottish Parliament committee considering the Scotland Bill, I then heard the Lord Advocate accept all the conclusions of the report of the group which I had the honour to chair. The Scottish Government's Bill team prepared a number of amendments. I felt that they ought to be before this House. But I want to make it clear that although I support those amendments, I do so because those amendments were drafted by technical people to give effect to the proposals of the review group that I chaired. I am not the spokesman for the Lord Advocate and still less a spokesman for the Scottish Government or the First Minister.

However, the result was that when the Advocate-General for Scotland, the noble and learned Lord who is here today, finally lodged his amendments towards the end of December just before Christmas, many of mine were rendered largely superfluous. So I decided that they should go and we should instead adopt an idea that was suggested to me by the Lord Advocate's Bill team; namely that we should simply put my proposals into Amendments 71 and 72 in the name of the noble and learned Lord.

I will say something about the underlying principles. First, I quote and endorse what was said in the House of Commons at Third Reading, to which reference has been made, by the Secretary of State for Scotland. He said in the context of what was then Clause 13 and is now Clause 17:

"I regret the tone of some of the remarks made against judges in the Supreme Court in recent weeks".

We all agree with that. He continued:

"I welcome the broad support for the idea that people in all parts of the United Kingdom should enjoy the same rights under the courts".-[Hansard, Commons 21/6/11; cols. 282-283.]

That is important because it has a strong bearing on the matter of certification.

Following that point, in the debate on 21 June, I find that Ann McKechin, a spokesman for the Labour opposition there, spent some time discussing the Supreme Court new clauses. She said:

"I would like to put on the record what principles should be followed in referring cases to the Supreme Court".

She continued:

"We believe that no one living in Scotland should have less access to the enforcement of their human rights than any other citizen living elsewhere in the UK".

Finally, she said that,

"it is important that people in Scotland should receive the same level of protection as everyone else ... It is important to have consistency of judgment, which is one of the parts of our judicial process".-[Hansard, Commons 21/6/11; cols. 285-288.]

That is an important principle that underlines what we said-that we wanted consistency throughout the United Kingdom. We did not seek and we do not advocate uniformity. There has never been uniformity in the criminal process between the courts in Scotland and in England. They have gone different ways, with I hope no harm to the concept of providing a fair trial. We must have consistent interpretation of the human rights provisions, but not necessarily uniformity in how the law is applied in particular jurisdictions where we have quite different systems.

In relation to the matters of principle, I have suggested the correct thing to do. I am not quite sure where the suggestion originally came from but I certainly endorse it. When we make amendments in relation to criminal appeals, those amendments should not go into the Scotland Act 1998 but should go into the Criminal Procedure (Scotland) Act 1995. That is the principle adopted by the Advocate-General and I congratulate him on doing that because it is the right place. In a sense, the issue of criminal appeals in relation to Scottish criminal trials and human rights belongs properly either in the Human Rights Act or alternatively in the Criminal Procedure (Scotland) Act 1995, which deals with appeals. That error, which was made in 1998 in the Scotland Act, is now to be remedied.

It is important to note as a matter of principle that the functions of the Lord Advocate were retained functions, not devolved functions. That was one of the flaws that David Edward so eloquently exposed in his report, which showed that it was a mistake to treat the Lord Advocate's acts as devolution issues. The High Court of Justiciary was not in any sense devolved at all.

The other matter that I want to draw attention to as a matter of principle is that the only recent relevant change affecting the High Court of Justiciary over criminal appeals is the change made when a new obligation to respect the Human Rights Act and the convention rights contained therein was created in the Human Rights Act 1998; no other change was made in relation to the High Court of Justiciary. It was just an extension of a matter that they had to consider and, in respect of which, it was felt there should be an appeal to the United Kingdom court, for reasons that I support and we explained very fully in the report that I had the honour to act as chair for.

One other point of important principle-and I owe a great debt to Professor Neil Walker in this regard, who made the point very clear for us-is that when any supreme or appeal court sits, it should, so far as possible, be exercising different functions from the court below. It may examine the same question of law and have to revise the question, but, on the whole, you do not have different levels of courts in order to examine the same question. The higher court should be dealing with different questions from those dealt with by the court below.

Unfortunately, we have a grouping with a vast number of amendments, including the particular matters I have dealt with. In the mean time, in order to get Clause 17 out of the way and be sure that we are going ahead with Amendments 71 to 72K, I should sit down for the moment but come back to deal in detail with the particular matters that arise separately. I ask that this clause should not stand part.