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Committee (2nd Day) (Continued)

Part of Scotland Bill – in the House of Lords at 5:00 pm on 2nd February 2012.

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Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office) 5:00 pm, 2nd February 2012

For the convenience of the Committee, I will just explain why we are supporting the proposal that the clause should not stand part and speak to the amendments that are in my name, to which the noble and learned Lord, Lord McCluskey, has proposed his own amendments. That might help some of the structure of the debate.

I start by thanking the noble and learned Lord for the way he introduced this issue and gave a very fair explanation as to how we got here via the judicial representations to the Calman commission, the expert group that I set up under the chairmanship of Sir David Edward, and the subsequent group, to which the First Minister appointed the noble and learned Lord to look at this issue. It is perhaps rare that legal issues get quite as much public prominence as these have had, but there are important issues here. The purpose of Clause 17 was to provide that questions as to whether acts of the Lord Advocate, acting as the head of the criminal prosecution service, were compatible with ECHR or EU law should not be devolution issues under the 1998 Act. Clause 17 provided a separate statutory right of appeal to the Supreme Court for these issues. Under the current Scotland Act, acts of the Lord Advocate acting as the head of the criminal prosecution system in Scotland that are not compatible with ECHR or EU law would be ultra vires by virtue of Section 57(2) of the Scotland Act 1998.

In order to take account of the some of recommendations from the committee chaired by the noble and learned Lord, we thought it better to seek to delete Clause 17 and bring forward new clauses, otherwise it was going to get very difficult and convoluted indeed. In doing so, as the noble and learned Lord pointed out, we have in fact taken on board the point about the Criminal Procedure (Scotland) Act 1995. Many of the things we are doing seek to amend that.

The debate on Clause 17 and the issues that it raises has come a long way. Certainly during the summer there was a lot of heat, if not necessarily light, about the role of the Supreme Court in these matters. The finding in one of the main recommendations of the group under the noble and learned Lord, Lord McCluskey, that it was right and proper to retain appeal to the Supreme Court, allowed us to try to find a way forward that could command as much consensus as possible. There has been progress, and that progress and the fact that we have reached so many areas of agreement has been achieved by open dialogue, proper consultation and mature consideration on all sides. It is certainly in that spirit that I will consider the arguments that are made by noble Lords contributing to the debate this afternoon.

Amendments 71 and 72 are the Government's response following careful consideration of the recommendations made by the review group led by the noble and learned Lord, Lord McCluskey, as well as taking on board the views of other noble Lords and having regard to the comments and representations from the Lord President of the Court of Session and the Scottish Government. As most people in the Committee are aware, the Lord President has written to the Clerk of the Parliaments expressing his views on these matters. We ought to be aware of that. He has exercised his powers under the Constitutional Reform Act 2005 to make representations regarding his concerns about Clause 17. I have considered his letter carefully, and Amendments 71 and 72 address one issue that he raised relating to extending the right of appeal so that it does not just apply in relation to acts of the Lord Advocate. He also raised the question of certification, which is clearly an important issue which I will address later.

I am persuaded that the right of appeal to the Supreme Court in criminal proceedings should extend to questions as to whether acts of public authorities are compatible with the ECHR and European law and should not just be limited to certain acts of the Lord Advocate. The definition of "compatibility issue" inserted by Amendment 71 achieves this change and provides that a "compatibility issue" is a question as to whether an act of a public authority is made unlawful by virtue of Section 6(1) of the Human Rights Act 1998 or is incompatible with European Union law. A compatibility issue can be raised only in criminal proceedings. The noble and learned Lord in his review group report-and I think that I recall this from his evidence to the Scottish Parliament Committee-referred to making a number of issues justiciable under the present arrangements under Section 57(2). There have been some quite contorted views as to what the Lord Advocate does or does not do to allow the matter to be considered. Taking forward and reflecting in our amendment the recommendation of the review group allows a much more sensible and straightforward way to deal with these issues.

I am not minded to accept Amendment 71B proposed by the noble and learned Lord, Lord McCluskey, that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with the ECHR or European law. I may have misheard him, but I thought he said as much himself in his remarks. Questions as to whether an Act of the Scottish Parliament is within the legislative competence of the Parliament should continue to be devolution issues as they relate to the exercise of the Parliament's powers. They are quite properly devolution issues. A question that concerns the compatibility of an ASP with the ECHR or European law rather than a question of an interpretation of a reserved matter should not result in the application of a different appeal mechanism. In addition, it would mean that if the amendment was carried, if someone wished to argue that an Act of the Scottish Parliament was incompatible with the European Convention on Human Rights and also that it was not law under Section 29, as it also related to a reserved matter, they would need to use a new appeal route in relation to the European Convention of Human Rights issue as well as using the existing devolution issues appeal route. That seems unduly cumbersome and a recipe for delay.

The review group led by the noble and learned Lord made a persuasive case that when the Supreme Court considers a compatibility issue, it should not consider whether a miscarriage of justice arose as a result of the compatibility issue. Instead, the Supreme Court should be required to determine a compatibility issue and then remit the matter to the High Court of Justiciary in Scotland. Amendment 72 provides that the new appeal right to the Supreme Court can apply only to the determination of a compatibility issue. The Supreme Court can reformulate the question it is considering, but only for the purpose of determining the compatibility issue. Amendment 72 clearly provides that the powers of the Supreme Court can be exercised only to determine the compatibility issue, and once the court has done this it must remit the proceedings to the High Court of Justiciary.

There are a number of points in respect of which I have not yet been persuaded by arguments put forward by the noble and learned Lord's review group, or by the Lord President of the Court of Session and others. Principally, I have yet to be persuaded that it is necessary to provide that a compatibility issue can be appealed only to the Supreme Court if the High Court has certified that it raises a point of general public importance. I respect the arguments that are put on the other side. It is a very well balanced argument; inevitably, when lawyers are involved there are compelling arguments on both sides. Nevertheless, we believe that the Supreme Court has a role as a constitutional court, and that the amendments which the Government are putting forward seek to provide a role for the Supreme Court to deal with certain constitutional issues that arise in criminal cases.

The High Court of Justiciary, sitting as an appeal court, is indeed the final court of appeal. It is the apex court in Scotland in respect of Scottish criminal cases. The exceptions that exist relate to devolution issues, and will exist in relation to compatibility issues if the House agrees these amendments. They will arise because of the constitutional issues raised by the European Convention on Human Rights and European Union law issues, and the need for those issues to be dealt with consistently-a word which I think the noble and learned Lord used, and which I would agree with-throughout the United Kingdom.

The system of certification in England and Wales arises due to the different nature of the Supreme Court in respect of criminal cases in England and Wales. In England and Wales, there is a right to appeal in criminal proceedings to the Supreme Court in respect of all issues, including substantive criminal law and criminal procedure, not just those relating to compatibility with the European Convention on Human Rights and European Union law. In addition, the requirement for certification in England and Wales was introduced to prevent the House of Lords, as it was then the court dealing with these issues, being flooded with criminal appeals. The then Lord Chancellor, Viscount Kilmuir, set out the background to the introduction of certification in England and Wales when the Administration of Justice Bill was being introduced in this House in March 1960. On that occasion, he said:

"If there is to be a right of appeal from the Divisional Court, the question arises: what test is to be applied? For, clearly, some limitation must be imposed on the right of appeal if the House of Lords is not to be flooded with criminal appeals to an unmanageable extent. Then again, whatever test is applied, it ought to be 250 the same for appeals from the Court of Criminal Appeal as from the Divisional Court"-[Hansard, 24/3/60; col. 249.]

This view was supported in the consultation which I undertook in February and March last year. The noble and learned Lord, Lord Cullen of Whitekirk, is here. As a former Lord President of the Court of Session, in his response to the consultation of the review group chaired by the noble and learned Lord, Lord McCluskey, he said:

"In any event the fact that in English criminal cases a certificate is necessary seems to me to be beside the point. It applies to the majority of cases, and is not directed to cases of alleged contravention of Convention rights", or European Union law.

I am not persuaded that certification by the High Court is necessary to ensure that the Supreme Court considers only appropriate cases or to prevent it being swamped with cases. The Supreme Court has put a very helpful note on its website, which is also available in your Lordships' Library, entitled Scottish Criminal Cases and the UK Supreme Court. It includes details of the number of Scottish criminal cases that have been dealt with by the Supreme Court. The note sets out that since the Supreme Court was established, just over two years ago, it has dealt with 31 applications to appeal from Scottish criminal cases. In seven the High Court had granted leave to appeal, and of the remaining cases the Supreme Court granted permission to appeal on four occasions and refused it on 20 occasions. I understand that in the four cases in which permission was granted by the Supreme Court, two were upheld and two were dismissed. In addition, a number of cases have been referred to the Supreme Court for consideration, so it cannot be said that the number of Scottish cases being considered by the Supreme Court is in any way a torrent of cases.

Moreover, the House of Lords Constitution Committee, when considering this Bill-including Clause 17-noted that the review group led by the noble and learned Lord, Lord McCluskey, had recommended certification but considered that,

"notwithstanding the legal and political controversy, there is no constitutional objection to clause 17".

I accept that there does not appear to be a consensus in favour of certification. I recognise and respect that the Lord President agrees with the amendments tabled by the noble and learned Lord that certification is needed. The arguments against certification are also supported by a number of individuals including Sir David Edwards and most of the members of the original group that was set up. The Law Society of Scotland would prefer that the status quo remained at present but indicates that on the issue of certification it is not persuaded. The Faculty of Advocates, JUSTICE and the Scottish Human Rights Commission are also not persuaded.

The reasons give by these bodies and individuals have varied. In response to the consultation that I initiated on specific points relating to Clause 17, JUSTICE considered that certification was not required as,

"we see no evidence that there is any need for a more stringent test than the leave requirement already being applied by the High Court and the Supreme Court in their leave decisions".

The Scottish Human Rights Commission gave another reason for not supporting certification. In responding to my consultation, it commented:

"The introduction of a test of general public importance will create a barrier to justice in some cases. Such a barrier creates precisely the problem which the Expert Group recognised must be guarded against-namely the potential for different interpretations of Convention rights as between the different jurisdictions within the UK, with the result that a case in Scotland is decided differently to one in England and Wales that raises precisely the same Convention rights issue".

As I have indicated, the arguments for and against are well balanced. I will listen carefully to what is said in the course of the debate today and will reflect on that and the representations that have been made.

There are other points of difference with the amendments tabled by the noble and learned Lord, Lord McCluskey. I am not persuaded that I, my successors in office or the Lord Advocate should be able to refer a compatibility issue matter to the Supreme Court if the Lord Advocate or the Advocate-General satisfied that it raises a point of public importance. I consider that the accused, the Lord Advocate and I should all be subject to the same constraints, so it will be for any of us to seek the permission of the High Court in Scotland or, failing that, the Supreme Court to appeal a compatibility issue to the Supreme Court.

I do not consider that it is necessary for the High Court to have power to refer a compatibility issue to the Supreme Court at its own instigation where it considers that the issue raises a point of law of general public importance. I consider that a compatibility issue should be able to be appealed to the Supreme Court only once trial proceedings have concluded and the issue has been determined by the High Court in Scotland. This will ensure that the Supreme Court has the benefit of the knowledge and understanding of the High Court. If it is important that an issue is determined quickly because of the implications for other cases, then there it may be possible for the courts, at each stage of the process, to hear and determine the issue expeditiously.

That said, I appreciate that these are very technical arguments; they are important but very finely balanced. I have deliberated over them, and I will be interested to hear your Lordships' comments in the course of this debate. I would be willing to consider returning to this on Report in the light of any comments that are made but I believe that, after a considerable amount of work and consideration, we have struck the right balance. The report of the expert group under Sir David Edward and the subsequent review group under the chairmanship of the noble and learned Lord, Lord McCluskey, have assisted us considerably in trying to reach our position, which I believe is well balanced. I commend the amendments to the House.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

Clause 18 : Time limit for human rights actions against Scottish Ministers etc

Amendments 42 and 43 not moved.