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Committee (2nd Day) (Continued)

Part of Scotland Bill – in the House of Lords at 5:30 pm on 2nd February 2012.

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Photo of Lord Boyd of Duncansby Lord Boyd of Duncansby Labour 5:30 pm, 2nd February 2012

I must say that I am somewhat confused as to where we are on all this and whether, for example, I have now to address the issue of certification. I am not entirely clear whether the noble and learned Lord, Lord McCluskey, has yet to address that issue.

However, first, as the noble and learned Lord observed, I was a member of the Advocate-General's expert group looking at the issue of the jurisdiction of the Supreme Court. We welcome the progress that has been made by the noble and learned Lord and reflected in the government amendments. The expert group recommended that the jurisdiction of the Supreme Court should continue and should be focused on the role of the prosecutor, but that convention compliance in criminal should be outwith the jurisdiction or ambit of Section 57(2).

In making these recommendations, it is fair to say that we were conscious of the sensitivities that the proposed changes in the jurisdiction might engage, and conscious of keeping our recommendations within the strict ambit of the remit that we were given. Nevertheless, it is true that our report-and perhaps more importantly the controversy that surrounded the cases of Cadder and Fraser, the debate that was provoked and, most importantly, the review headed by the noble and learned Lord-refocused the debate and changed the emphasis away from the role of the prosecutor. That was a welcome step.

I do not want to detain the Committee on the reasons for going away from the status quo, particularly now that Clause 17 has been departed from, but it is right to say that the jurisdiction was a somewhat contrived one, focusing on the role of the prosecutor, distorting the issue and widening out the definition of acts of the Lord Advocate beyond those which, perhaps, would have a more natural meaning, or particular steps in a judicial process.

We have moved on. The amendments before the Committee break down into a number of clear issues. The first is certification, focused on in the amendments of the noble and learned Lord, Lord McCluskey. That is now the real issue between us: whether or not there should be an additional hurdle, not previously present in the jurisdiction under the devolution issues, of certification. That issue is of genuine public importance. That certificate would be given by the High Court. The decision would be final, with no appeal against the certification. From this side of the House, like the noble and learned Lord, Lord Wallace of Tankerness, we will listen to the debate. Nevertheless, it is fair to say that we do not support certification.

There is of course an issue of principle. For myself, I have a philosophical difficulty with the concept that the court against which an appeal is being taken can itself control access to that right of appeal. There is no appeal against a refusal to certify if the issue is a point of general public importance. The right to petition the Supreme Court would not apply, as I understand it, to certification. Now, of course, I appreciate that it will be said that that does not apply to criminal appeals from England, Wales and Northern Ireland-although I think that there are some exceptions, habeas corpus being one of them. The fact that that is the case in relation to criminal appeals in England and Wales does not make it right that it should be present for fundamental issues of human rights arising from criminal cases in Scotland. The noble and learned Lord the Advocate-General is right to draw a distinction between criminal cases as such and the constitutional issues, which are focused in issues of compliance with the fundamental rights contained in the European Convention of Human Rights.

Moreover, as the issue of certification in England and Wales is at large in criminal cases, we are not dealing with a level playing field-we are not comparing like with like. The present system relies on obtaining leave from the High Court. Leave should be given only if a devolution issue is raised that is seriously arguable and sufficiently important to justify a hearing of the appeal by the Supreme Court. Therefore, I suggest that it is already a high test but there is a right to petition the Supreme Court for special leave if leave is not given. That, in my submission, is an important protection.

There is the question of how certification might work in practice. It would, as Lord Hamilton acknowledges, be a new function for the court. I have no doubt that the court would take the responsibility seriously but how would it work in practice? Although it is a different test, there were 15 cases in which special leave was granted by either the Judicial Committee of the Privy Council or the Supreme Court from 1 June 1999 to the end of February 2011. These included cases of the utmost importance, including the case of Holland, which related to disclosure and the conduct of identification parades, and, most recently, the case of Cadder. I do not suggest for one moment that that was improperly dealt with-far from it. However, the fact is that it was rejected in the sift on two occasions and leave to appeal to the Supreme Court was refused. The appellants presented a petition to the Supreme Court for special leave, which was granted. Whatever one might think of the rights and wrongs of the decision, it certainly dealt with one of the fundamental issues of rights of access to a lawyer. I just make the point that, had the law remained as it was in Scotland, Scotland would have been one of a dwindling number of European countries which denied a right of access to a lawyer before questioning by a police officer. This is perhaps a moot point if the European Union directive on access to a lawyer is opted into by the Government, because that will have to come about as a result of EU legislation. However, that was a fundamental issue and special leave was granted.

Lord Hamilton, the Lord President of the Court of Session, has written to Parliament under Section 5 of the Constitutional Reform Act. It is important that we consider all that he says in his capacity as head of the Scottish judiciary and give due weight to the issues that he raises. Of course, the Government have listened in relation to the first part of his letter, and we welcome that. However, it is also important to put the letter into its context and I shall make two preliminary points.

First, Lord Hamilton does not suggest that the proposal that the Government are advancing in any way impinges on the independence of the judiciary. If that were the case, it would be a most serious matter and would require us to draw back and think again. Secondly, he does not suggest that the proposals impose any further administrative burden on the court system or on judges. In many ways, if anything the burden is more likely to fall on the Supreme Court, and there has been no complaint from that quarter. In so far as the letter from the Lord President relates to certification, it has to be seen against the background of concern from the judiciary in Scotland about the jurisdiction of the Supreme Court.

As we have already heard, the Scottish judges made a submission to the Calman commission and one of the main difficulties that they highlighted was what they perceived as a difference of interpretation between themselves and the High Court and the Supreme Court on the test of miscarriage of justice contained in the 1995 Act. They also raised important issues about delays in the system and the burden. At that time, they suggested three alternative solutions. I need not detain the Committee with what those solutions were but two of them would have removed the jurisdiction of the Supreme Court altogether and the third would have widened the jurisdiction to include any criminal case-not just a convention or EU compatibility. In other words, it would be the same jurisdiction as England and Wales have and would be a novel one for the law of Scotland. It is fair to say that no one thought that the judges' third suggestion was one that they considered would be taken particularly seriously.

The issue that they put before us in the Calman commission was whether the Supreme Court should continue to have any jurisdiction in convention cases. The Calman commission considered that this went beyond the remit but acknowledged that there was a serious issue to be addressed, hence, of course, by the Advocate-General's expert group.

Some of the difficulties that the Scottish judges had initially highlighted in relation to miscarriage of justice and its definition were largely resolved in later cases, in particular, I think-no doubt I shall be corrected by others if I am wrong-the case of McInnes in 2009. Some of the issues in relation to the burden on the system and potential delays have been addressed, first, by the expert group and then by the Government and by the expert group of the noble Lord, Lord McCluskey.

I submit that many of the original issues that the judges raised with us have now been dealt with. However, the Scottish judges have continued to press for changes to the jurisdiction. I need not go into this in any detail, as it would not be appropriate, but it is clear that there have been tensions between the two different levels of courts. Perhaps that is inevitable in a new jurisdiction. I suspect that any lingering issues will soon be resolved as the jurisdiction settles down and as the major issues are dealt with. I think many of them, such as disclosure, rights of access to a lawyer and so on, have already been dealt with. Delay was another early issue which was dealt with and on the whole it has not been visited since then and there is also the issue of changes in personnel.

Our task in this Committee is neither to arbitrate between the two courts, nor indeed to come down on one side or the other. Our task is to ask ourselves whether the imposition of a further hurdle in reaching the Supreme Court of the United Kingdom on compliance with fundamental rights and freedoms, incorporated in the European Convention of Human Rights, is appropriate or necessary. We on these Benches think that is not an appropriate measure to take.

We support the amendments that have been tabled by the Government. I listened carefully to what the noble and learned Lord had to say about Amendment 71B. He raises the important issue of how compatibility of an Act of the Scottish Parliament is dealt with in criminal proceedings. My view is that the issue of whether an Act of the Scottish Parliament is compatible with the European Convention on Human Rights should continue to be dealt with as a devolution issue. The question is whether the amendment of the noble and learned Lord the Advocate-General achieves that. We may need to look at that.

Amendment 71C concerns criminal proceedings. We will no doubt hear from the noble and learned Lord on that. Amendment 72A comes later in the group. I am not sure whether the noble and learned Lord spoke to it. I asked whether Amendment 72A was necessary, because the matter is dealt with in Section 124 of the Criminal Procedure (Scotland) Act.