Scotland Bill (Supreme Court)

– in the Scottish Parliament on 30th June 2011.

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Photo of Tricia Marwick Tricia Marwick None

The next item of business is a debate on motion S4M-00447, in the name of Kenny MacAskill, on the Scotland Bill—the role of the Supreme Court in Scots criminal law.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I pay tribute to Lord Rodger of Earlsferry, who sadly died earlier this week, following a short illness. I am sure that members will wish to join me in acknowledging the outstanding contribution that he made to public life in Scotland over the course of a distinguished career, including as a judge and as Lord Advocate. The First Minister noted on Monday that Lord Rodger was held in the highest regard by all those who worked with him in public service. That is an assessment that I and, I am sure, many other members share.

I turn now to the subject of today’s debate. Scotland has a unique legal tradition, which is many centuries old and is proudly independent. The existence of a distinctive Scots law predates the treaty of union by centuries. The old Scots Parliament was making laws for Scotland, and those laws were being applied in Scotland’s courts, long before 1707. The distinctiveness of Scots law has been at the heart of our national identity, and it is something that we have a duty to preserve and uphold. I know that that view is widely held—it is not a party-political point. It is critically important that we maintain the identity and the substance of Scots law—they are the foundations on which our legal institutions stand, and they are part of our civic democracy. That identity and independence was constitutionally guaranteed by the treaty of union and it has been cherished and preserved for centuries since.

Until 1998, the High Court of Justiciary was at the apex of the Scottish criminal justice system. There was never any real intention that devolution would or should change that situation. The mechanisms that were built into the Scotland Act 1998 to deal with devolution issues were narrowly drawn and limited in intent, but in practice we have seen a steady encroachment since 1999. That has meant the emergence of a novel jurisdiction under which the United Kingdom Supreme Court, in which Scottish judges are in the minority, has come to exercise increasing influence over Scots law.

As Ian Smart, a former president of the Law Society of Scotland, has said,

“There is disquiet right across the legal profession that we have drifted into a situation where there is a second layer of appeal … The Court of Criminal Appeal is the final appeal court in Scottish criminal procedure. … Nobody intended that routine cases should be dealt with in the Supreme Court.”

This is not about apportioning blame but about recognising the situation that has arisen.

Photo of James Kelly James Kelly Labour

Does the cabinet secretary dissent from the view expressed by the Law Society that only 23 cases have gone to the Supreme Court in the past 14 years so the practice is not as frequent as he is trying to make out?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I do not think that I mentioned frequency. What I said was that cases have gone to the Supreme Court and those cases have been of fundamental significance, as they include the Cadder case, which Mr Kelly and everyone else in the chamber knows. Indeed, 14,000 devolution minutes have been marked. There is significant input and the consequences and effects are manifest and radical.

As the Court of Session judges noted in 2008 in responding to the Calman commission, the practical consequences of encroachment have included delays to trials and appeals and additional expense for all concerned. Indeed, Mr Kelly might well recall that the First Minister commented in the chamber that printing costs in one instance were in the region of £80,000 or £90,000 simply for the Crown.

I am therefore in no doubt that there is a problem here that needs to be addressed. The evidence is overwhelming.

Let me be clear: this is not a debate about our commitment to human rights. Scotland’s belief in the fundamental values that are reflected in the European convention on human rights is not in any doubt. Notwithstanding some of the comments that have been bandied about in the chamber, I am not aware of anyone who is elected or who sits in this chamber who does not support human rights being applied here in Scotland.

Furthermore, this debate is not fuelled by our well-known desire for constitutional change because, although that is part of the ethos of the party that I represent, we equally have a duty to ensure that we preserve good order in our court systems.

Photo of Johann Lamont Johann Lamont Labour

Given that the cabinet secretary said that we have a commitment to human rights, does he agree that having those rights enforced through the Supreme Court is more accessible than having to wait to be heard at Strasbourg?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We are trying to ensure that we get the appropriate balance. Strasbourg is the place where these matters are ultimately dealt with. I prefaced my comments by saying that I believe that everyone has accepted that the ultimate court of criminal appeal in Scotland should be the High Court of Justiciary. As I was going to say in relation to Lord McCluskey’s review, it is about how we strike the right balance between having the ECHR and the Strasbourg court, which apply both north and south of the border, and preserving the integrity of our centuries-old legal system, which has a duty to apply the criminal law.

What we are discussing today is the self-evident fact that the existing devolution settlement requires structures that work and which avoid unforeseen and unintended negative impacts. The simple fact is that there are significant problems with those existing structures. That is why we have sought to promote public debate and why we have asked some of Scotland’s most eminent legal minds to examine the current difficulties and to provide their expert advice.

We have had passionate and sometimes outspoken public debate in recent weeks, but it is now time to move that debate on to a considered examination of the options that are available. I am, therefore, pleased to welcome the first report prepared by the independent review group led by Lord McCluskey. I welcome him and his colleague Sheriff Charles Stoddart to the chamber. That eminent group draws on the vast experience and in-depth knowledge not only of Lord McCluskey but of Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker. It has been asked to work independently of Government, without fear or favour.

What the group has given us in its first report is objective and measured, and has been informed by an unparalleled level of expertise. The report provides a sound and sensible basis for debate.

Photo of James Kelly James Kelly Labour

I do not doubt what the cabinet secretary says about the experts on the group, but he tells us that the interim report has been informed by an “unparalleled level of expertise”. How can he say that when the group could not conduct any interviews because of the short timescale in which it had to produce its report? [Interruption.]

The Presiding Officer:

Before the cabinet secretary answers that, I ask whoever has the phone that is switched on to switch it off now, and I ask all other members to check that all mobile devices are switched off.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

We should remember that we are talking about an interim report and that a final report will be produced later in the autumn. We should also remember that Lord McCluskey and his review group had the opportunity to look at representations that were made to the Advocate General for Scotland’s review group by the Law Society of Scotland and others, and that they have made it clear that they will be happy to take evidence subsequently. Therefore, it seems to me that an appropriate level of information was out in the public domain and was accessed by the review group. Many members believe that there comes a time when we need to cease having consultations and start providing solutions. That applies to other developments that are under way, but I certainly think that the interim report is based on sound evidence. It will be subject to further debate and discussion, which is the purpose of this morning’s debate.

The group is clear in its view that Scots criminal proceedings have been “unexpectedly” brought under review in the Supreme Court. As the group observes in its report, because of the lack of parity of appeal mechanisms, the High Court of Justiciary

“has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to … human rights issues in criminal cases.”

It does not recommend ending the current jurisdiction of the Supreme Court. In providing that advice, the group recognises the “constitutional realities” of the current settlement, which I accept. We are where we are, even if it is not where we seek to get to ultimately.

However, it is crystal clear that what emerges about existing arrangements is that the statutory basis in the Scotland Act 1998 is unsatisfactory; that the position of the High Court of Justiciary is anomalous and significantly weaker than that of equivalent courts elsewhere in the UK; that the proper role of the Supreme Court—if it is to continue to have a role in Scottish criminal cases—lies in defining and clarifying constitutional and human rights law; and that it is for the High Court to apply that law in practice, in the context of the individual cases that come before it. There is an urgent need to resolve those problems.

The review group has already identified some potential solutions, including further amendments to the Scotland Bill, which now require more detailed development. It is clear from the report that the High Court should remain at the apex of the Scottish criminal justice system. There is a clear distinction between the role of the High Court and that of the Supreme Court. It is for the Supreme Court to rule on the most challenging and complex human rights questions, subject to the overarching jurisdiction of the European Court of Human Rights in Strasbourg, but it is the proper function of the High Court of Justiciary to apply the law of Scotland in accordance with rulings by the other two courts.

Those are distinct and separate functions. The jurisdiction of the High Court is different from that of the Supreme Court or of the court in Strasbourg. None of them is in competition with the others. In fact, the work of all three courts should complement, not conflict. There is no question but that the High Court can be relied on to apply the law consistently with the determinations of the Supreme Court. It is every bit as capable of applying the law in accordance with the conclusions reached by the European Court of Human Rights.

The challenge that we face lies in ensuring that the existing structures deliver the right results for criminal justice in Scotland and that they do not result in the unintended erosion of the role of the High Court or the distinctive character of Scots law. The suggestions by the review group in this first report help us to address the challenge, but they are not final conclusions.

As I said earlier, I welcome Lord McCluskey’s undertaking to explore in further detail the issues that he has identified. Those are issues that will need to be satisfactorily addressed by the UK Government in the Scotland Bill when it reaches the House of Lords in the autumn. As Lord McCluskey highlights, the changes under debate engage reserved and devolved interests. For our part, we have already made it clear that there are elements of the Advocate General’s existing proposals that we welcome and support. However, the final shape of the bill must properly reflect the concerns—and the solutions—identified by Lord McCluskey. Those provisions will need to gain the confidence and support of this Parliament if they are to be credible and successful.

Lord McCluskey’s group will continue its work over the summer. I look forward to the outcome of that work and to a further report from the group in due course. I also look forward to the opportunity for constructive dialogue with the UK Government. With that in mind, I believe that we should all be able to work together to take forward the review group’s recommendations and to see a package of proposals in the Scotland Bill that we can all support.

I move,

That the Parliament welcomes the interim report of the independent specialist group led by Lord McCluskey; believes that it provides a constructive and well-informed basis for further detailed consideration of the role of the UK Supreme Court in Scots criminal law, and looks forward to receiving the further advice and final report of the group in autumn 2011.

Photo of Johann Lamont Johann Lamont Labour

I associate my party with the cabinet secretary’s comments on the sad death of Lord Rodger and recognise the significant contribution that he made to Scottish public life. We send our condolences to his family at this sad time.

I am happy to contribute to the debate. The role of the Supreme Court is a complex one. The interim report of the review by Lord McCluskey and his colleagues is an interesting and valuable contribution to our understanding of the issues involved. I do not pretend to be a legal expert on those issues, and I recognise that those with expertise in and experience of our judicial system and Scots law are engaged in significant debate about the role of the Supreme Court. It is evident that, in the next period, as Lord McCluskey moves towards a fuller report, there will be disagreement and debate about the group’s conclusions. Perhaps it is unfortunate that the interim report has been constrained in its access to information simply by a timetable imposed by the Scottish Government.

The issue of the need for leave to appeal to the Supreme Court requires further consideration, but we should be alive to the fact that that change is not universally accepted. There are those who would not agree that this is an issue of parity. However, it will be important to reflect on the effect and impact of such a change and to understand what its consequences might be.

What we should be able to agree on today is that this report by the First Minister’s group, led by Lord McCluskey, is a rebuttal of the stance of the First Minister and the Cabinet Secretary for Justice. If members recall, the First Minister and the cabinet secretary argued that there should be no role for the Supreme Court in Scotland’s judicial system—not when we get independence but now.

There was an argument that the Supreme Court was somehow predatory upon the Scottish courts, that the Supreme Court routinely sought to interfere and that Scottish judges, sitting in London, were not able or competent enough to address issues of Scottish law. Indeed, it was argued that the English judges, no matter how learned they were, were not capable of understanding the Scottish legal system, and that their understanding was limited to excursions to the Edinburgh fringe. There was an argument that the Scots would be better served by access to Strasbourg than to London, even if that access meant many more years of uncertainty. The review group clearly rejects that position and the cabinet secretary’s new focus on appeals is the inevitable fallback for someone whose argument has been roundly refuted.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Does the member think that Cadder-type situations, which require the kind of emergency legislation that we had to introduce, are beneficial either to Scots law or to good order in this country?

Photo of Johann Lamont Johann Lamont Labour

Some have argued that if the Scottish judicial system had been more alive to such issues earlier and had responded at a certain point, emergency legislation would not have been required. Nevertheless, I am not sure whether it is appropriate to judge the quality of courts on the consequences of individual decisions, which is precisely the point that is being made in this debate.

Of course certain interesting issues have to be resolved, but that will never happen through foghorn diplomacy. Given his own intemperate comments, the cabinet secretary’s claim that he was promoting public debate somewhat stretches credulity. He must acknowledge that his approach to this complex issue has been entirely inappropriate. The language that he and the First Minister have used has demeaned their office, insulted individuals’ integrity and, worryingly, introduced the MacAskill principle of government, which is that he who pays the piper calls the tune. In that respect, I am interested to hear whether the same principle applies to, say, voluntary sector and other organisations that might wish to comment.

The main reason why the approach taken was problematic was that it was counterproductive and obscured the real debate. Of course, this debate has been driven not by judicial dilemma but by the simple politics of a nationalist Scottish Government, whose innate nationalism defends all things Scottish on the basis of their being Scottish and is hostile to anything south of the border. The problem with the Supreme Court is not what it does but where it sits. Such a conservative defence of the Scottish legal system is odd, given Scots law’s historically strong willingness to learn from other jurisdictions and approaches. Indeed, Mr MacAskill himself has introduced provisions from the English legal system into the Scottish system and, even as we speak, Lord Carloway is considering issues of fundamental historic significance to Scots law such as the question of corroboration. Given the challenge to providing victims of crime with access to justice, we must never allow a complacent view that resists change in a changing world.

Indeed, that is where we must focus: the role of the Supreme Court and, more broadly, the legal system itself in protecting victims and ensuring fairness. At the height of the First Minister’s excesses in railing against the Supreme Court, his position shifted significantly from an attack on a perceived wounding of the Scottish legal system by an English court to what seemed to be an attack on the way in which human rights legislation protected and gave succour to perpetrators of crime, not their victims. That issue is important for all of us who want human rights to be protected in our courts and communities. We still have to address the hostility that is felt by many people in Scotland and beyond towards a human rights agenda that compensates prisoners for slopping out while appearing to offer no protection to families under the cosh from aggressive neighbours and unresponsive public services that do not address their needs. We have to rehabilitate the case for human rights and ensure that it protects the victims of crime instead of being used as an alibi for agencies that have failed to protect them. In that regard, we on this side of the chamber are more than happy to engage in a debate on rights and responsibilities and various balances and understandings in relation to human rights legislation. We must talk about human rights for those in care homes, our schools or wherever and about the balance of rights and responsibilities in our communities.

We regret the tone in which this debate began and the fact that it was driven by a political agenda, not by an agenda concerned with the legal system. However, we acknowledge the significant contribution made by Lord McCluskey’s report and the challenge that it presents and, indeed, welcome Lord McCluskey’s comment in the report that the debate cannot be confined to the legal profession. Although it should be informed by the profession and although we should recognise that people with great expertise in the field hold a range of views on the matter, there has to be a buy-in from far beyond the legal profession. After all, if there is a gulf in understanding between the views of the legal profession, the courts and judges, and the experience of the people in our communities, we are all diminished. In that respect, the human rights issues are significant.

We would therefore welcome further reporting from Lord McCluskey and engagement with the UK Government, particularly with the Advocate General. We urge the Scottish Government to engage in quiet diplomacy, rather than the foghorn diplomacy of the past. That did not inform or shape the debate; rather, it prevented the debate from proceeding constructively. We are open to an interrogation of the present system and to change that protects access to justice. Above all, we urge the cabinet secretary to debate the issues of justice in terms of justice and not as a convenient hook on which to attach the Government’s political mission. I look forward to the debate.

I move amendment S4M-00447.2, to leave out from “believes” to end and insert:

“further welcomes the group’s reaffirmation of the continuing role of the UK Supreme Court in constitutional and human rights issues affecting Scotland; recognises that the interim report and the work of the expert group set up by Lord Wallace raise some important questions in relation to devolution issues; regrets the inappropriate language of the First Minister and the Cabinet Secretary for Justice with regard to highly respected judges of the UK Supreme Court and the threat to withdraw funding from the court, and believes that wider consultation and discussion on proposals for change are vital in order to allow proper, well-informed, thorough and detailed consideration of all the relevant issues and implications of reform.”

Photo of John Lamont John Lamont Conservative

I am pleased that we have reached the stage of a parliamentary debate on the important issue of the Supreme Court and how it relates to Scots law. Although the workings of the Supreme Court are beyond the legislative competence of the Scottish Parliament, the court’s decisions have had a bearing on high-profile legal cases in Scotland, so it is important that we have a proper debate on the issue. That much I warmly welcome. However, the issue has undoubtedly become marred in recent weeks by much tub thumping and name calling on the part of the Scottish Government, which has done little to foster the mature debate that we need on such important issues. Whatever the merits of the argument, encouraging incendiary headlines in our newspapers is not the way to conduct a meaningful and rational discussion on an issue of such importance. The Government ought to argue its case on the basis of facts rather than personal slurs on senior Scottish judges.

We in the Conservatives pay tribute to the talent and service of Lord Rodger, who died earlier this week. Along with his colleague Lord Hope, Lord Rodger served as one of two Scots on the UK Supreme Court. From the tributes that have been paid to him this week, it is clear that Lord Rodger brought a substantial talent to his role. His death is a great loss to the Scots legal profession. In the context of today’s debate, he brought a great deal of knowledge of the Scots legal system to the Supreme Court.

We are indebted to Lord McCluskey and his team for their interim report, not least because of the timing demands that the Scottish Government placed on them. They have produced a clear and concise summary of the key issues in a short space of time. However, it is not clear what the Government’s rush is to have a debate on the issue. Of course it is important, but why not wait for the final report, by which time the review group will have had time to engage properly with experts and stakeholders in the field? Holding a debate when we have only an interim report suggests that things are being rushed for some reason.

No one denies that there are issues with how the Supreme Court engages with Scots law in determining points that relate to human rights. After all, those issues are hugely complicated, given that they deal with the legal relationship between the High Court, the Supreme Court and the European Court of Human Rights in Strasbourg. That relationship between the workings of a Scottish court, a UK court and a European court demonstrates simply that Scotland is part of the United Kingdom and the European Union. The Scottish Government is clearly uncomfortable with one of those facts—for political and ideological reasons—but they are the facts, and the Scottish Government needs to learn to deal with the national and international legal obligations by which we are bound.

That said, we fully support any effort to tidy up the way in which our courts operate and to establish the most effective working relationship between the institutions. The interim report identifies a number of issues in the relationship between the courts. However, it clearly backs the UK Supreme Court’s jurisdiction to rule on human rights in Scottish criminal cases. Furthermore, the report goes on to argue that if, as is the Scottish National Party’s preferred option, the European Court of Human Rights in Strasbourg is used instead,

“there is the potential for further uncertainty and delay.”

I am sure that all members agree that we certainly do not want that when dealing with important human rights cases.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I commend the member’s view that we must try to make access to justice as speedy as possible and that going to Strasbourg would create too much delay. Therefore, does he agree that it would be much speedier in an independent Scotland if we kept the apex of our judicial system here and did not have to go through the extra step of going to London?

Photo of John Lamont John Lamont Conservative

I do not quite follow the logic of that. The delay in hearing cases in the European Court of Human Rights is significant—tens of thousands of cases are waiting to be heard. Claimants—people trying to secure their human rights—will not get access to justice any more quickly. Indeed, they will have to wait longer. The consequences of Cadder could have been far reaching if the delay before the case was heard had been much longer than it was at the Supreme Court. Access to justice has been achieved much more quickly under the current system of the Supreme Court than it would be achieved under the system preferred by the SNP.

Unlike the First Minister, the report does not say that the Supreme Court does not know or understand Scots criminal law. Some of the best Scottish judges are appointed to the court. It is insulting to suggest that they are unable to consider Scots cases correctly. If the concerns are really about the need to have Scottish judges to determine Scottish appeals, a solution would be to appoint one further Scottish judge to the Supreme Court and thereby produce a majority in Scottish appeals.

The report also stresses the need for coherence in the way in which human rights laws are applied both north and south of the border. The UK Supreme Court undoubtedly provides a mechanism to ensure that that happens.

I understand that the Advocate General will consider the interim report from Lord McCluskey, and I know that he will be paying close attention to the contributions in today’s debate. However, I have no doubt that he will also draw on the conclusions of his own expert group and the evidence given by the Scottish legal community when they were consulted on these matters.

I am sure that this will be a helpful debate in establishing some of the facts surrounding the relationship between the High Court and the UK Supreme Court. Too much of what we have heard from the Scottish Government on this issue in recent weeks has been either devoid of facts, or a deliberate distortion of facts.

I move amendment S4W-00447.1, to insert at end:

“; notes the realistic conclusion of the interim report that “the Supreme Court would continue to make final and binding rulings on human rights issues including those arising in criminal cases from Scotland”; calls on the Scottish Government to accept this central conclusion, and further notes and expresses its appreciation of the outstanding contributions to Scottish public life and the Scottish legal system made by Lord Hope of Craighead and the late Lord Rodger of Earlsferry”.

Photo of Nigel Don Nigel Don Scottish National Party

I, too, am grateful to Lord McCluskey and his review group. I start with paragraph 42 of his first report, which says:

“Those who prefer to see the essence of the arguments distilled will find that that has been expertly done in the Expert Group Report. It would be superfluous to repeat their summary here.”

So he does not repeat it.

I would like to go back to the expert group convened by the Lord Advocate, under Sir David Edward, which reported last November—and offered, as it were, the view from the other side. The expert group had slightly longer to consider the issues. I will start with a quote:

“It is sufficient for present purposes to note that the House of Lords”— which preceded the Supreme Court—

“on more than one occasion, held that a criminal appeal to the House from the High Court of Justiciary was not competent. This was put beyond doubt by the Criminal Procedure (Scotland) Act 1887. The Criminal Procedure (Scotland) Act 1995 provides that decisions of the High Court of Justiciary ‘… shall be final and conclusive and not subject to review by any court whatsoever.’”

A little further down, the report notes that the Supreme Court, under the Scotland Act 1998, is a court with “constitutional” jurisdiction, ensuring the legislative competence of the Scottish Parliament and the devolved competence of the Scottish ministers. The cause of the problem is that Scottish ministers include not only those who are obviously Scottish ministers but the Lord Advocate and the Solicitor General.

What are devolution issues? The report says that they have to do with “legislative competence”. I do not think that that is in dispute—which is one of the reasons why the Supreme Court will remain. The report also says that devolution issues are questions about

“the exercise (or purported or proposed exercise) of a function by” a minister, and questions about the

“failure to act by a member of the Scottish Executive” and whether that

“is incompatible with a Convention right or EU law.”

That, of course, is a point to which we will return.

It is because, and only because, the Lord Advocate is a member of the Scottish Executive that his or her acts are subject to review as a devolution issue. There is no parallel in other parts of the United Kingdom.

I apologise, Presiding Officer, for the speed with which I am going through this, but time is not on my side.

On page 12—

Photo of Nigel Don Nigel Don Scottish National Party

Forgive me. As I have just said, time is not on my side, and I really want to get this on the record.

The expert group’s report says on page 12:

“Any tension between the tests applied by the Supreme Court and the High Court was effectively resolved by the decision of the Supreme Court in McInnes—” which was in 2010.

“In that case, the Supreme Court also made clear that where a case raises special features of Scots criminal law and practice, the Supreme Court ‘must be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland’.”

I emphasise that that was the Supreme Court saying that.

The report goes on:

“In adopting this approach the Supreme Court recognised what has been repeatedly emphasised by the European Court, namely that it is not concerned with substantive domestic law but only with ensuring compliance with the rights secured under the Convention. Devolution issues only properly arise where there is an issue of procedural unfairness.”

However, the report of the expert review also notes, on page 14:

“in reviewing a devolution issue, the Supreme Court has (at least in certain circumstances)—” and this is prior to the recent Fraser case—

“effectively reviewed the whole merits of a decision. It is unsatisfactory that such a wide jurisdiction should be the by-product of interpretative ingenuity applied to the concept of the expression ‘act of the Lord Advocate’.”

That would perhaps be fine if the Supreme Court was made up exclusively of Scots judges. I go back to John Lamont’s comments—I am not sure why having a majority of Scottish judges would help; they should really all know what they are doing.

Lord Hope’s personal response to the expert group is cited on page 15 of the report, at paragraph 3.16, which notes:

“Lord Hope concludes by saying:

‘For the most part the fact that the Supreme Court draws its membership from several jurisdictions has not given rise to difficulty. In practice the other justices defer to the expertise of the Scots on matters of Scottish criminal law and procedure that may come under scrutiny, and I am confident that this will continue to be the case.’”

Others will argue about other problems, but I take from the quotes that I have read out the point that the Supreme Court itself recognises that it is reviewing, although it should not be. It now finds itself with just one Scottish judge, sadly, although there will no doubt be two again ere long. The majority of judges in that court are simply not experts on the subject, but on occasion—albeit it might not be very often—they are asked to review the whole merits of a case. As far as I am concerned, that is what should not be happening, and the Supreme Court itself recognises that it should not be happening. Furthermore, every statute that I have cited recognises that that should not be happening. We absolutely have to address that.

Photo of Graeme Pearson Graeme Pearson Labour

I acknowledge the contribution of Lord Rodger of Earlsferry to the wellbeing of Scottish justice. I also acknowledge his humanity and the way in which he dealt with members of the public in the performance of his duties.

This is one of the last debates before the summer recess, and I would have imagined that we would be dealing with an issue of great concern to the ordinary members of the public of Scotland. I thought that it might have been about the 200,000 Scottish children who are living in homes that have been designated cold and damp and who are suffering from fuel poverty, or about the 20,000 children who reside in homes with adults who are affected by drug abuse.

No. We find that we are dealing with the role of the Supreme Court, a subject so significant to our future that the First Minister, in his interview with Holyrood magazine, focused his wrath on the institution in terms that one could only describe as unprecedented and unparliamentary. The attack on Lord Hope of Craighead, who is an acknowledged leading light in Scottish jurisprudence, was astonishing in its venom, and indeed in its inaccuracy. Taken in concert with the justice minister’s assertion that

“He who pays the piper ... calls the tune”,

it presented Scotland’s Government in an undignified light, creating an atmosphere for debate more akin to that of the football terraces than that of political discourse.

The First Minister’s attack on

“the vilest people on the planet” does nothing more than play to gut prejudice. He well knows that prisoners are in our prisons not because of who they are but because of what they have done.

One can only imagine that the immediate thrill of its success in the election caused the Scottish National Party Government to lose the place—although hopefully it did so only momentarily. At least the First Minister has since recognised common sense by delaying his sectarianism legislation. Perhaps he now realises the error of his ways in his management of this issue, too, and perhaps the cabinet secretary will follow his example.

Is the function of the Supreme Court of such import that it required the First Minister’s immediate attention? Apparently not. The genesis of the current situation emanates from the Scotland Act 1998 and the Human Rights Act 1998. The First Minister, who was then a member of the Westminster Parliament, presumably recognised the significance of section 57(2) of the Scotland Act 1998, given that it introduced a role for the Judicial Committee of the Privy Council in reviewing the acts of the Lord Advocate. At the time, Mr Salmond harshly described the Judicial Committee of the Privy Council as consisting of many members who had held political office and owed their appointment to the council to politics.

It has been 13 years since the Scotland Act 1998 and six years since the creation of a non-political Supreme Court, yet only now is the Scottish Government overcome by the absolute imperative of ensuring that Scottish courts are maintained in the fiction that they exercise their function in total isolation and that external courts should have no influence on the Scots law tradition. Depending on which part of his speech one listens to, the justice secretary’s position is either that the Supreme Court deals with routine cases or that it deals with fundamentally significant cases.

It is curious that at this time we should find our attentions diverted from the real issues that are important to normal people.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Did the member take that view when we had to have emergency legislation in relation to Cadder? Does he think that we should just have viewed that as routine? Does he not recognise that some of the matters decided by the Supreme Court cause such significant issues that we have to deal with them as emergency legislation? Does he wish that situation to continue in the future?

Photo of Graeme Pearson Graeme Pearson Labour

I obviously recognise that the decisions taken by the Supreme Court are of fundamental import to Scots law, but the issues arising from the Cadder decision were flagged up earlier by a decision in relation to a Turkish case. That should have been acknowledged and acted on much earlier.

The reality is that when the United Kingdom signed up to the Human Rights Act 1998, each jurisdiction in the UK became subject to responsibilities in relation to the Strasbourg court and the European convention on human rights. It seems to me that instead of denouncing a London-based court, which had two pre-eminent Scottish judges on it, Lord Hope and Lord Rodger, the Government would have done better to examine the ends at which the arrangement was aimed—swifter and better justice—and not become overwhelmed by the means by which the court’s decisions were arrived at.

The Government’s concentration on both the court’s location and the nationality of the judges who are involved reduced Scotland’s position to one akin to hillbilly politics—and not for the first time. The substantive issue of having proper procedures while acknowledging the Supreme Court’s right to rule on appropriate Scottish matters was lost in the brouhaha. Common sense and decorum were abandoned as insults were flung and aspersions were cast.

The McCluskey report offers a sane interim before the next stage: proper measured discussions involving experts who can advise best on the way to arrive at an appropriate solution to the current administrative lacuna.

Be in no doubt: the independent report by McCluskey states that the Scottish Parliament has no power to alter the jurisdiction of the Supreme Court in human rights matters. The report states—with the expert group’s agreement—that the Supreme Court should continue to have jurisdiction over human rights issues in Scottish criminal cases.

For me, the key issue is to get the Government’s agreement on a way forward that acknowledges the Supreme Court as a valuable mechanism for deciding human rights matters affecting Scottish courts. Only then is it likely that, as the Cabinet Secretary for Justice suggested, a line can be drawn under this matter.

Photo of John Scott John Scott Conservative

You must close now, Mr Pearson.

Photo of Graeme Pearson Graeme Pearson Labour

The Government has diverted our attention away from the real issues and, as such, I support Johann Lamont’s amendment.

Photo of Christine Grahame Christine Grahame Scottish National Party

My speech is in three parts, covering the historical perspective; Lord McCluskey’s review, which, as most will acknowledge, sets out a reasonable way forward for the UK Supreme Court, especially with regard to parity between the various jurisdictions; and the ECHR itself.

Could we have foreseen the reach that the UK Supreme Court would have? Certainly not. In the debate on the Sewel motion on the UK Supreme Court’s establishment that we had in 2005, the motion was moved by Hugh Henry, the then Deputy Minister for Justice. At the time, he said—and I am being fair though selective in my quotations:

“Those areas relate to the rights of appeal in civil cases from the Court of Session on non-devolution issues.”

That is what people were focusing on. Mr Henry also said:

“We must also ensure, as Pauline McNeill said, that the independence and integrity of Scots law are maintained. The separate nature of the Scottish legal system is an important part of how Parliament can operate differently, reflecting the needs and aspirations of the Scottish people.”

He also mentioned that the Justice 2 Committee

“proposed that there should be enshrined in legislation the requirement for a Scottish majority in the supreme court for cases that emanate from Scotland that give rise to devolution issues.”

Those issues were aired in the debate at the time. The Conservatives opposed the move—indeed, there is a delightful comment from Bill Aitken about happening to find himself for the first and perhaps last time on the same side as the then shadow minister for justice, Kenny MacAskill—with Annabel Goldie making it clear that their opposition was based on the fact that the legislation was rushed, that no royal commission had been set up and that there was no real consideration of the proposal. Mike Pringle of the Liberal Democrats supported it, but even he focused on civil cases. Everyone had their eye on the House of Lords’s dual judicial and legislative purpose and it was felt—appropriately, I think—that there was a conflict of purpose and interest in its sitting as a legislator and as a court of appeal on Scottish civil court cases. As far as I can see, no one in that debate seemed to think for a moment about criminal cases.

That was the position in 2005 and, as a result, I think it really rather impolite to say that a senior bench of Scottish judges should have seen this train crash coming down the track. They know a lot more about Scots law than anyone sitting in the chamber and if they could not see it coming, I do not know how anyone else was supposed to.

I also find it ironic that, in that earlier debate, the current Cabinet Secretary for Justice said:

“Ultimately, we have to ensure parity.”—[Official Report, 19 January 2005 ; c 13629-33.]

Of course, he was talking about civil cases; as we now know, the flow has been the other way. As Nigel Don pointed out, criminal jurisdiction has partly shifted towards the House of Lords in a way that, I think, was never envisaged.

I welcome the interim report from Lord McCluskey’s review group and look forward to the publication of the final report in August. However, I say to Johann Lamont that she should take a look at some of the cases that are before the UK Supreme Court. One particular case, which involves AXA General Insurance Ltd and others as appellants against the Lord Advocate and others, seeks to reduce the effect of legislation on pleural plaques, an act of this Parliament that her party campaigned for. They are attempting to challenge the Parliament’s competence in passing that legislation under the European convention on human rights. As we know, every bill that comes before Parliament has to be certified as competent under ECHR, but the fact is that all those people who are waiting for damages under that legislation are not getting them anymore.

We need to consider the unforeseen breadth of the cases that are coming before the Supreme Court. For example, one case, referred to as Her Majesty’s Advocate v Ambrose (Scotland), relates to the evidence obtained when an accused person responded to police questioning at the roadside without any legal presence. That is where this is taking us.

Photo of Richard Simpson Richard Simpson Labour

Taking the example that the member has highlighted, I point out that tobacco companies, for example, take us to court to delay the implementation of legislation. What would happen if the Supreme Court did not exist? Would the matter not go to Strasbourg? If so, would that not result in much longer delays?

Photo of Christine Grahame Christine Grahame Scottish National Party

With respect, I think that the member misses my point. The Supreme Court is challenging the Parliament’s competence to deliver its own acts and is, in fact, reviewing our own legislation. The legal advice that we received on this particular legislation, which as I recall was passed unanimously, was that it was ECHR-compliant; however, that is now being reviewed. No one envisaged that happening.

I turn, in my final minute and a half, to the convention itself, which the Council of Europe established when it had only seven members. I fully support the principles and rights that are embodied in the convention, but the Council of Europe now has 47 member states, all of which have very different cultures, economies, jurisdictions and rules. In Scotland, people have a right to silence, from which guilt cannot be inferred. In Scotland, independent corroboration is necessary in criminal cases. In Scotland, people have access to criminal legal aid. In Scotland, people have a right to apply for bail in certain cases. Does all that apply in other nation states? I do not think that it applies across the board.

I suggest that, after 60 years of the ECHR, rather than challenge the rights and duties that exist under it, we should ask for a review of its operation across nation states to take account of the different jurisdictional checks and balances that are applied in those nations. That way, we might avoid judgments coming through that are not sustainable.

Photo of Kezia Dugdale Kezia Dugdale Labour

I very much welcome the opportunity to take part in today’s debate on the Supreme Court.

I am conscious that we all walked past Public and Commercial Services Union members who are on strike as we entered the building this morning. I am aware that many of the staff who work in our court system are PCS members, and it would be wrong to discuss the work that they do without recognising their hard work and dedication to public service. They are striking today because of the serious attack on their living standards that is the result of measures that the UK Government has taken, and I encourage members to sign my colleague Drew Smith’s motion in support of their position.

In preparation for today’s debate, I read the interim report of the group that is chaired by Lord McCluskey, who is supported by Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker. I was fortunate enough to have been taught constitutional law by Professor Walker at the University of Aberdeen a decade or so ago, and I admit that I had hoped that I had left late nights of reading legal opinion for his class behind me but, alas, that is not the case.

Like the SNP, I am very proud of Scotland’s legal system and its proud history, which is one of the first things that students learn about at law school. We are different, and our system has been admired and plagiarised, in the best possible way, around the world.

However, I fear that the SNP, through its attempts to chastise the Supreme Court for the role that it plays, has done our legal system a disservice. Let me develop that point. The McCluskey report is right to recognise the fact that Scotland is the only devolved authority in the UK for which the Supreme Court has an unqualified right to grant special leave when the court below has not granted leave. That is an anomaly, which the report is right to raise, but it does not amount to a constitutional crisis that demands the levels of hysteria that have been displayed by the justice secretary and the First Minister.

For me, the answer is not to narrow the role of the Supreme Court in Scotland, but to refine it by addressing the anomalies that exist and to use it to our advantage. For as long as Scotland is part of the UK, which is the signatory to the convention and is therefore accountable for its application, that is the right and proper way to function.

The McCluskey report argues that the Supreme Court should have a role in identifying the law that the criminal courts apply, but that that law should be remitted back to the High Court for application. Paragraph 60 of the report says:

“Once the Supreme Court has defined and expressed the law applicable in response to the point of general public importance raised in the certificate, the High Court of Justiciary should be able to apply that law to the case in hand. This method of proceeding would ensure that the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary. In this way the traditional role of the High Court of Justiciary would be preserved.”

That might make uncomfortable reading for Government ministers, coming, as it does, in a report that they commissioned, but it strikes me, at this early stage, as being a sensible and legally sound position to adopt.

The report goes on to discuss briefly the prospect of the High Court seeking a ruling from the Supreme Court on a point of human rights law before trial. Actively seeking the Supreme Court’s guidance on the application of human rights law prior to the commencement of a trial could, arguably, speed up the justice process and improve the finality of decisions. That is an extremely interesting prospect, and I look forward to reading more on the detail of that idea in the final report of Lord McCluskey and his team. I acknowledge that, as other members of my party have said, the report that we are discussing is an interim report and that much more evidence needs to be gathered before any real conclusions can be drawn.

I do not accept that the integrity of Scots law is under attack from an English court. I am firmly of the view that the application of our law needs to be read alongside our duties under human rights legislation, and I am as proud of our country’s human rights laws as I am of the Parliament. Freedom of expression and the right to privacy, life, freedom from torture, a fair trial and freedom of thought, conscience and religion are all fundamental to a free and fair society. The Supreme Court exists to protects those rights, and we will undermine them if we choose to make this debate about a constitutional question about Scotland’s relationship with its neighbour. We have a duty as parliamentarians to reaffirm why those rights exist and to recognise that there is no hierarchy of rights between law-abiding and law-breaking individuals. As my colleague Graeme Pearson said, “vile people”—the First Minister used that term—go to jail not for who they are, but for what they have done. When we send people to prison, we remove their liberties, but not their rights. That said, the public debate about human rights in action would benefit from more positive stories about their capacity to protect victims and vulnerable people.

The Scottish people’s choice of Government is indisputable, but their future constitutional preference is not. Government ministers’ attempts to cut off the Supreme Court and remove it from the jurisdiction of our land to raise the spectre of independence are not just poor politics; they border on abusing the rule of law. That is why I welcome Lord McCluskey’s thoughtful and sound interim report and look forward to seeing the continuation of the debate surrounding the Supreme Court.

Photo of Alison McInnes Alison McInnes Liberal Democrat

The Scottish Liberal Democrats, too, mark the sad death of Lord Rodger by paying tribute to his work and his contribution to the Scots legal profession.

I join other members in thanking Lord McCluskey and his group for working so quickly to get their first report to us in time to inform this debate, which is taking place just before the summer recess. I also welcome the language in the Government’s motion. It is fair to say that it is somewhat more considered than what the Cabinet Secretary for Justice and the First Minister have said in recent weeks.

It seems to me that the Government has found itself in a slightly awkward position in that it is being forced to welcome a report that it disagrees with. I sense that SNP members will make interventions and try to claim that that is not so, but the First Minister has said that the Scottish Government believes that

“the UK Supreme Court should have no role in matters of Scots criminal law”.

He has said:

“It is our firm view that the final appeal court for any Scottish criminal case should be in Scotland”.

In fact, he set up the review group expressly

“to examine how best to achieve that.”—[Official Report, 2 June 2011; c 305.]

Perhaps now, having been forced to beat a hasty retreat for the second time in a week, Government ministers will think twice before they pronounce on issues using the tawdry language that showed so much disrespect to the Supreme Court, its judges and our legal system. It should be a matter of great concern to everyone that ministers, who play a role within our judicial system, should launch attacks on judges and their judgments. Respecting the judiciary’s independence is a fundamental responsibility of the Government, and I hope that ministers will take that duty more seriously in the future.

The truly disappointing aspect of the debate is that the intemperate comments from Mr Salmond and Mr MacAskill have served only to distract us from the real issue at hand. The main issue that we should be concerned with is not where the Cadder or Nat Fraser ruling was made; we should be far more worried about the deficiencies in our criminal law and procedures that are creating doubts about the legitimacy of convictions in the first place. Those cases and other recent cases have not been examples of a foreign court imposing itself into Scottish criminal proceedings; rather, they have been a warning that we need to look closely at our body of law and review exactly how it sits in relation to our ECHR responsibilities.

In its briefing for this debate, Amnesty International rightly pointed out that

“It is unfortunate that most public, or even political, engagement with the ECHR centres around criminal cases”,

with the consequent

“assumption that human rights exist principally to benefit” the criminal classes. That perception of the ECHR is not the reality, of course, but it lingers and in many ways makes the discussion about how it should work in relation to Scots law more difficult. However, that difficulty is not a reason to ignore it. The recent cases have demonstrated that we must look to address the matter with some urgency.

Photo of Christine Grahame Christine Grahame Scottish National Party

I want to pick up on the point about our focusing on the criminal. Does the member consider the AXA case to be hugely significant? It is a civil case in which a huge insurance company is relying on the right to possessions—in other words, its funds.

Photo of Alison McInnes Alison McInnes Liberal Democrat

I understand the points that the member raises in relation to that case, but if we have established a robust position, we should not be frightened of defending it.

If any court identifies holes that leave Scots law open to successful appeal on human rights grounds, we cannot assume that they are isolated issues and hope for the best. We must take a proactive approach and act to close any further gaps that might remain. I therefore whole-heartedly endorse the Law Society of Scotland’s call to set up a full audit of the compatibility of Scots criminal law with the ECHR. The people of Scotland must have confidence that our laws will hold up to human rights challenges. I hope that the cabinet secretary will set in motion such an audit at the earliest possible opportunity.

I have a few concerns in relation to the McCluskey report. Although, as I said, we are all grateful for the speed at which the group has worked to meet another of the Government’s needlessly rushed deadlines, that speed has necessarily come at the expense of full consideration. For example, I am forced to wonder why we seem to be giving the report the same weight and significance as the Advocate General’s expert group’s report. That report was put together over several months and on the back of evidence taking and discussions with a wide range of experts and interested parties.

I am certainly not opposed to receiving a second opinion of sorts on the optimum solution for how the relationship between the Scottish courts and the Supreme Court should work. However—I say this with the greatest respect for the members of the review group—it is not possible to consider the issues and implications fully without the detailed consultation that the Advocate General’s group carried out. It is something of an oddity that we are having this debate about a hurried interim report that was commissioned on the back of rash comments from Government ministers that deflected attention from a failure of our legal process to properly protect a citizen’s human rights.

There is certainly discussion to be had on the role of the Supreme Court in Scotland, but that discussion has largely been had already. We have had a full detailed report and amendments that will readjust and clarify the Supreme Court’s role. Perhaps, given time to fully investigate the situation, the review group will recommend that the discussion should be reopened. Until then, I cannot help but feel that we would have been better served discussing what needs to be done to stop so many human rights issues arising in Scots criminal cases in the first place.

Photo of Graeme Dey Graeme Dey Scottish National Party

As the First Minister has made clear, the Government does not claim a monopoly on wisdom, be it on the issue that we are discussing or on any other matter. However, it is interesting to note the long list of legal experts—including, to name but two, Paul McBride and Elish Angiolini—who have echoed the Government’s concerns about the Supreme Court.

I am mindful of the wise counsel of a constituent of mine who has a long-standing interest in matters legal. He has made clear that

“There is a perfectly adequate system within Scotland for criminal justice appeals to be taken in Edinburgh.”

I do not agree on everything with that constituent. Indeed, I am sure that he was not among the 16,000 or so people who chose to vote SNP in my constituency in the recent election. However, just because Lord Fraser of Carmyllie remains misguided politically, that does not mean that his opinion on the Supreme Court is unworthy of respect. After all, Peter Fraser is a former Lord Advocate and Solicitor General and someone who, on legal matters at least, ought to know what he is talking about.

So, too, one would think, is Ian Smart, who is a former president of the Law Society of Scotland. As the Cabinet Secretary for Justice mentioned, he has stated:

“we have drifted into a situation where there is a second layer of appeal which was never anybody’s intention.

The Court of Criminal Appeal is the final appeal court in Scottish criminal procedure. If anybody had any intention of changing that, it would have been changed in Statute. Nobody intended that routine cases should be dealt with by the Supreme Court.”

Perhaps so, but that is where we found ourselves.

The Government’s opposition to what is happening is not, as Iain Gray has claimed, “constitutional grandstanding”. It is not, as Johann Lamont said, driven by a political agenda; it is about standing up for Scotland’s distinct legal system and seeking to prevent further erosion and interference.

Photo of Johann Lamont Johann Lamont Labour

Does the member agree that there are people in the legal profession who do not take the same view and that we should recognise that there is a range of views in the profession? Does he agree that we should try to come to a resolution through co-operating, rather than by picking folk who agree with us and saying that there is an issue of principle?

Photo of Graeme Dey Graeme Dey Scottish National Party

The member is right that there is a range of opinions. I have here a list of people who tend to agree with the Government.

The issue is not about seeking special treatment; it is about ensuring that our legal system enjoys the same respect and status as exist in other parts of these isles. The unionist parties in the Parliament are happy for Scotland to be part of Britain, so why are they seemingly prepared to accept that Scottish defendants can appeal to the UKSC without leave from our High Court, while English defendants require no equivalent permission? Where is the equality of partnership in the union in that? As a Parliament, we would be failing in our duty if we sat back and accepted a situation where a court in another UK jurisdiction can intervene in our judicial system.

Enshrined within the act of union is the principle that courts outside our borders should have no jurisdiction over Scottish criminal matters. Are those who defend the union really saying that the act that underpins it—or at least an aspect of it—can be ridden roughshod over? Perhaps independence is closer than we thought.

The interim report of Lord McCluskey’s independent specialist group is to be welcomed, at least to the extent that it recognises that there is a need to put the High Court on an equal footing with its counterparts in England and Wales by requiring the granting of a certificate that says that the case raises a point of general importance before a Supreme Court appeal can proceed. The report does not go far enough, in the view of some of us in the chamber, but we are where we are and we need to make the best of a bad job.

I want to address Johann Lamont’s amendment and some of the comments that have been made. We require to move on in this matter. I agree that it would have been preferable if we had been spared the use of words such as “arrogance”, “conceit”, “bile”, “intemperance” and “sneering disregard” in relation to this issue. Unfortunately, the leader of the Conservatives was unable to exercise restraint while participating in First Minister’s question time a couple of weeks ago. That was then; this is now. Let us focus on the issue being debated and the options for resolution.

Photo of James Dornan James Dornan Scottish National Party

Scotland has many things that distinguish it from the rest of the British Isles: our education system, our history, our culture and, of course, our independent legal system, which was so cherished by us Scots that we ensured that its independence was enshrined in the act of union in 1707. Surely on this issue we can all agree that we lose the independence of our legal system at our peril.

However, here we are more than 300 years later debating why a decision made unanimously by seven Scottish bench judges in a Scottish court is being overturned by a court outside Scotland—the UK Supreme Court—where the majority of judges are not experts in Scots law.

Photo of John Lamont John Lamont Conservative

Is the member seriously arguing that the European Court of Human Rights would have taken a different decision than the one that the Supreme Court took? Is he saying that, if the case had gone to the European Court of Human Rights, that court would have reached a different conclusion?

Photo of James Dornan James Dornan Scottish National Party

It is very difficult for me to answer such hypothetical questions.

We have heard the background. Prior to 1999, the judiciary of Scotland were the final arbiters of all things criminal in Scottish law. Even though the Supreme Court was written into the Scotland Act 1998, it was never meant to be able to take on the role that it appears to have taken on.

It is my view that the electorate put us in this chamber for two main reasons: to stand up for our constituents and to stand up for the interests of our institutions and the Parliament. The way that the Supreme Court has behaved recently is a blatant attack on both.

Scotland is not some region of England to be dealt with under English law; it is a proud nation with a long history of a unique and treasured legal system and it deserves to be treated in the same way as every other legal jurisdiction across Europe, with the Strasbourg court as the final option for judgment when required.

Photo of James Dornan James Dornan Scottish National Party

No, sit down.

By now, members will have had the chance to familiarise themselves with the findings of Lord McCluskey’s interim report. He rightly points out that the High Court of Justiciary—the highest court of appeal in Scotland—should be seen as equal and not subordinate to its counterpart south of the border. Yet, since 1999, the Supreme Court has overturned the decision in a Scottish criminal appeal in nine cases and upheld the Scottish decision in six cases. It is important to stress that Strasbourg cannot quash convictions so, although the two courts have similar remits, they are not the same.

How can it be right that a court where the majority of judges are not experts in Scots law should have the power to overturn a decision that is made by seven eminent judges who are experts in Scots law?

Photo of Johann Lamont Johann Lamont Labour

How many experts in Scots law are sitting in Strasbourg? How long would it take to get cases there and how long does the SNP think is acceptable for people to have to wait for access to an appeal?

Photo of James Dornan James Dornan Scottish National Party

What I do not think is acceptable is that Scotland is unique among all the legal jurisdictions in Europe in that it has to ask its big brother for permission before cases can go to Strasbourg. What we are asking for is parity for the people of Scotland and for the Parliament.

Quite simply, the current situation is not right. Clearly, I am not alone in that assertion. Lord Fraser of Carmyllie, a former Tory MP, who has already been quoted, said:

Mr Salmond is spot on ... There is a perfectly adequate system within Scotland for criminal justice appeals to be taken in Edinburgh.”

I know that Lord Wallace is seeking to amend the Scotland Bill with regard to the Supreme Court, but he does not go far enough to protect the integrity of the Scottish judiciary. It should concern him, as it concerns some members of this Parliament, that the High Court can be challenged in a way that was never possible before devolution and was never intended to be possible after devolution.

We all know the background to the Cadder affair. Peter Cadder appealed his sentence on conviction, because the evidence that had been used against him was collected before he spoke to his lawyer. That was common practice in Scotland, although I never heard anybody from the Labour benches complaining about it.

When the UK Supreme Court found in favour of Cadder, Lord Hope gave the lead opinion, saying:

“It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure.”

What I find remarkable about it is that Lord Hope was Lord President from 1989 to 1996. We might have thought that, during that period, such a supposedly glaring deficiency would have come to his attention.

There have always been other safeguards in Scots law, of course, including corroboration, but Lord Hope and his colleagues clearly decided that that was irrelevant.

This issue is of huge importance to the Scottish legal profession and to members of the public, particularly the victims of crime. The Cadder decision alone is thought to have affected up to 40,000 detentions a year. Some of the people who were charged with the most serious of offences have had those charges dropped. How is that good for Scotland?

Scotland deserves the right to be treated as any other ordinary country. We do not need big brother keeping an eye on us in case we get it wrong. I accept that, as long as we are part of this union, which has far outlived any usefulness that it might once have had, the Supreme Court has to be dealt with. I therefore strongly support the McCluskey recommendation that, as happens in England, no appeal can be dealt with by the Supreme Court unless leave is given by the original court of appeal. [Interruption.]

When it comes to being treated as equals, I will believe that when I hear about the Supreme Court dealing with a case where someone in England believes that their human rights have been abused because they were not given the safeguard of corroboration, such as we have here in Scotland. However, I suspect that we will be waiting a while for that.

I urge members to support the Government on this crucial issue.

The Deputy Presiding Officer:

We are getting interference through the sound system again. I would be grateful if members did not use their BlackBerrys or mobile phones in the chamber.

Photo of Gil Paterson Gil Paterson Scottish National Party

I am very much a supporter of the European Court of Human Rights. The history of Europe tells us that individuals and communities have been persecuted, and that has not stopped—it continues. I firmly believe that the individual should be protected from the state, so that they can get on with their lives without being picked on.

However, my support is not unqualified. I have grave reservations regarding some aspects of how human rights legislation is implemented. Voices have been raised in that regard, and I point in particular to the Tories, who are consistent in their approach to some of the issues that have arisen.

I call this the European straight-banana syndrome, whereby measures are so bizarre when they are implemented that they bring into question the whole system of human rights. Having said that, I am still very much a supporter. I am confident that the areas of concern will be examined, and that things will be changed.

The establishment of the Supreme Court has created a rights issue in Scottish terms. Some members have mentioned the treaty of union. In effect, the United Kingdom has an unwritten constitution, but the nearest thing that we have to a written constitution is the treaty of union and the act of union that followed. The treaty itself discusses the parity between Scots and English law, and with good reason. That is not there, as some members might think, as some gift to the Scots—as some protection from which only the Scots would benefit. It is the United Kingdom, and the two legal systems are entirely distinct from each other. It would be farcical if the law in England was interfered with by Scots law. That has been the case for 300 years, and the arrangements have worked extremely satisfactorily.

However, we now have what is in effect an English model and system interfering with Scots law. In English law, for instance, there is the House of Lords, which has no jurisdiction whatever in Scotland. I can prove as much because in a case that I eventually took to the European Court of Human Rights I was required first to exhaust all domestic legal remedies. I was not required to go to the House of Lords; after I took the case through the Scottish courts, I went straight to Europe, which demonstrates that Europe itself recognises the uniqueness of Scots law.

No matter how many good, hard-working Scottish judges sit on it, the Supreme Court is still, in my view, an English court. I find it strange that, even though I am a firm believer that the only way that Scotland can move forward is through independence, I am, because of the treaty of union, standing here having to defend the union while the very folk who are supposed to be unionists are letting it disintegrate willy-nilly by allowing all this to happen. Given that there is no way the treaty of union can be amended in law, I believe that this court has been set up in a fundamentally unlawful way. I challenge my own ministers and the Law Society of Scotland to go back to first principles—or, in other words, the treaty of union. If English law, as I see it, is gazumping Scots law in this fashion, it should stop doing so immediately in order to protect the union.

The Deputy Presiding Officer:

Before I call Dr Simpson, I should inform the chamber that as one or two speakers have finished early we have a little time in hand, so I can give members a generous six minutes.

Photo of Richard Simpson Richard Simpson Labour

I, like many others, pay tribute to Lord Rodger of Earlsferry, who shared with me a love of the east neuk; indeed, he derived his title from that very area. Rightly considered to be one of the finest legal minds of his generation, he made a profound and outstanding contribution to the Scottish legal system and the Scottish legal profession is poorer for his passing.

I want to consider the role that the UK Supreme Court should play in Scots law. Some of the comments made by the First Minister and the Cabinet Secretary for Justice have been unhelpful; to be frank, I think that some have been disgraceful and certainly amount to nothing more than constitutional wrangling with an incorrect understanding of the real issues.

I accept that, historically, only civil appeals from Scotland went to the House of Lords and that the final court of criminal appeal was always the High Court of Justiciary. However, one should not be surprised that, with the advent in 1999 of devolution and a new legislature and Executive, there needed to be a fundamental shift in the legal system to accommodate such things. It remains the case that the Scottish Government is accountable to a legislature with limited powers; as a result, it is more limited in power than the UK Government, which is accountable to a sovereign legislature.

Under section 57 of the Scotland Act 1998, the Scottish Government is prohibited from carrying out any act that would be incompatible with the ECHR. Originally, an appeal on such grounds would have been made to the Judicial Committee of the Privy Council, but that responsibility was transferred to the UK Supreme Court when it was set up. I do not think that such a change was as groundbreaking as Gil Paterson has suggested. Given that the judges who were on the judicial committee are the same as those who now sit on the Supreme Court, the power that is being wielded over the Scottish Government is not new, and the only conclusion that we can draw is that the Government is behaving in this particular manner because of the Cadder appeal and, more recently, the appeal by Nat Fraser. However, I believe that, instead of accusing the Supreme Court judges of being “ambulance chasers” and threatening to cut funding, we should engage positively with a system that protects the human rights of everyone in this country.

In our manifesto, Scottish Labour pledged to set up an audit of Scots criminal law to ensure that we never have to repeat the rush of panic legislation, costly compensation claims and mass appeals that followed the Cadder judgment. I hope that the Scottish Government will take that plan forward.

We support the European convention on human rights. Some members seem to be implying that they do not. I am sure that that is not their intention. Those rights have made a huge contribution to justice throughout the 46 jurisdictions in Europe, which remain distinct.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Whose human rights are being protected in the AXA case? Should we not be protecting the human rights of those who suffer from pleural plaques and upholding the dignity of this Parliament, which correctly acted to protect them?

Photo of Richard Simpson Richard Simpson Labour

I will answer that question a little later.

The ECHR has made a huge contribution to justice throughout the 46 different jurisdictions in Europe and has established an appropriate set of principles. There is a requirement for consistency across vast areas of the European jurisdiction.

Scottish Labour welcomes the McCluskey report’s support for the Supreme Court to continue to hear criminal appeals on human rights grounds as

“a necessary means for securing ‘consistency’ throughout the distinct jurisdictions within the union that constitutes the UK.”

We accept that there is room for improvement and we hope that the McCluskey group now engages in much wider consultation on how that can be achieved before it makes its final report.

Far from encroaching on the independence of Scots law, that approach simply means that the ECHR is one of the latest improving influences on our unique—but not isolated—legal system, which has evolved from a huge number of different sources and traditions. Indeed, as Lord Hope pointed out, Scotland’s early exclusion of evidence elicited under torture demonstrates the way in which Scots law has evolved over the years; presumably, it will continue to evolve. Some SNP members have implied that our legal system is preserved in aspic. I disagree. That was not the case when it said that we should not take evidence elicited under torture and it will continue to evolve and to recognise the ECHR.

Photo of Gil Paterson Gil Paterson Scottish National Party

The member misdirects the chamber. Members on this side of the chamber did not suggest that Scots law has never evolved. It has evolved from within and has taken some leads from other jurisdictions. The distinction here is that it is interference rather than evolution.

Photo of Richard Simpson Richard Simpson Labour

I think that it was Professor Neil Walker who talked about interpenetration between the English and Scottish systems, rather than one dominating the other—one does not tell the other what to do. It is about retaining our uniqueness while nevertheless accepting that there will be a degree of alignment and interpenetration.

I understand fully that there is understandable public concern, referred to by other members, about the uncomfortable imposition of coherence associated with the ECHR, and the apparent greater protection given to the accused than to the victim. While we probably all feel that to some extent, it is not an excuse for attacking the system.

The first act of this Parliament was to deal with the Ruddle case. As those members who were here at the time will remember, the case presented us with the serious prospect of serious and violent offenders being released from our state hospital. It was the incorporation of the ECHR that led to that situation, and a number of uncomfortable decisions have been made since. However, that does not make these decisions inappropriate. That is important. We take a risk if we begin to suggest that, because of their uncomfortable nature, such decisions are wrong, which is what some members have implied in today’s debate. I suspect that the intemperate language of the Cabinet Secretary for Justice has more to do with the campaign for independence than that justifiable public concern or the protection of our system.

As an independent state, we would still need a supreme court or to revert to Strasbourg. Strasbourg has a massive backlog of cases, so the Government party intends to subject us Scots to inordinate delays in achieving justice under the ECHR by removing or changing the Supreme Court. I welcome the McCluskey judgment that we should continue with it, and I hope that there will be wide consultation in trying to reduce some of the anomalies.

I support the amendment in Johann Lamont’s name.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I begin by thanking Lord McCluskey and his group for their interim report. Comments have been made this morning about the lack of consultation, but point 77 in the final part of the report says:

“We are prepared to consult interested parties on the way forward following publication of this Report and the subsequent Parliamentary debate.”

The group clearly intends to consult before producing a more detailed analysis. It is unfortunate that some members have focused on a lack of consultation, rather than on the issues in the report.

Photo of Johann Lamont Johann Lamont Labour

The point being made is serious. A timetable has been unnecessarily imposed by the Scottish Government, and we are debating a report on which final conclusions have yet to be reached. The review group says that it wants to consult further, so it would surely have been logical for us to wait for that, rather than addressing the issue on a timetable determined not by the review group but, for whatever reason, by the Scottish Government.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I am rather surprised by that comment. I have been here for eight years, and the member has been here for 12, so we both know that it is not unusual for us to have debates before the start of a consultation, during a consultation, and after a consultation. Having the debate today does not seem entirely inappropriate. The Presiding Officer has spoken about suggestions for improving debates in the chamber and in committees, and it might be a good idea if committees sometimes initiated debates before beginning a consultation or writing a report. There are many ways of doing things; we do not necessarily have to await a final conclusion or report before speaking about a matter. What the member said was rather misguided.

I agree with what the report says about the realities. For those of us who do not wish to remain part of the UK state, the retention of the Supreme Court is, of course, anomalous. That is my starting point, and that is the SNP’s position. However, we are where we are. As has been said before by many people, we have to deal with the situation as we find it.

Richard Simpson concluded by saying that it would be terrible if Scots were denied justice because of delays or backlogs in Europe. Strasbourg seems good enough for the other 46 or 47 independent countries but, for some reason, it would not be good enough for Scotland. It is rather strange that every other independent jurisdiction and state accepts the role of the Strasbourg court, but the Labour Party thinks that we would be better off if we went to London.

I welcome some of the comments made by the review group in its report. Paragraph 44 says that the expert group thought that

“the existing statutory basis for bringing human rights issues to the Supreme Court was seriously flawed—‘constitutionally inept’ was the term used.”

Of course, the review group agrees.

I am surprised that some members today have ignored some of the comments in the review group’s report pointing out that there have been flaws and that there are anomalies—in fact, it talks about “striking” anomalies. I welcome the fact that Kezia Dugdale acknowledged that there was an anomaly that the review has attempted to address. However, I certainly did not agree with many of her other comments.

I thank Christine Grahame for reminding us of the history of this debate. The SNP did, indeed, argue against the creation of the Supreme Court.

We want a level playing field for our country and parity and fairness for our legal system. We certainly do not want uniformity; indeed, that is one of the dangers we face. On 8 February 2011, the then Lord Advocate Elish Angiolini told the Scotland Bill Committee:

“there is a real danger that we will have not just harmonisation of our criminal law on procedure and evidence but, indeed, a complete loss of identity for Scots law”.—[Official Report, Scotland Bill Committee, 8 February 2011; c 479-80.]

Our concern is not just about giving parity to Scots law but about the danger of uniformity and loss of independent action in it. We ignore such critical matters at our peril.

Of course, it is not only the SNP that has opposed some of the issues that the Supreme Court has raised; many others, some of whom have already been quoted, have made clear their opposition, including Ian Smart, the former president of the Law Society, and Paul McBride QC, who has suggested that in law the First Minister is right on this issue. Moreover, in October 2010, Lord Hope, who sits on the Supreme Court himself, said:

“This has ... brought the Scottish criminal justice system under judicial scrutiny in London in a way that was not, to the best of my recollection, anticipated when the Scotland Bill was being examined in Parliament.”

We have consistently repeated that argument: the original intention has been changed by the introduction of the Supreme Court and its actions. Every member in the chamber, not just SNP members, should be concerned about that. Indeed, as Graeme Dey said, we should all be standing up for the independence of the Scottish legal system.

Finally, I remind the Liberal Democrats that, when the Parliament was having this debate back in 2004 and members were arguing over whether the Supreme Court’s introduction would be a good or bad thing and discussing the impacts that it might or might not have on Scots law, they were pressed on the question whether judges from another legal jurisdiction should have a say in Scots law. Margaret Smith, who I believe was their justice spokesperson at the time—if I am incorrect, I apologise—said in the chamber:

“if the supreme court is considering a peculiarly Scottish case, there is no question of Scottish judges being in the minority.”—[Official Report, 29 January 2004; c 5312.]

That is exactly what has happened in every Scottish case that has come before the Supreme Court. Scottish judges are—and are always—in the minority. I ask that, in summing up, the Liberal Democrats withdraw that remark, apologise for it or change their position and support the proposal that, if the Supreme Court is to continue—which is obviously going to happen while we remain with the UK—Scottish judges should be in the majority when dealing with Scottish cases. That would certainly be helpful.

This is an important matter; it is not a matter for petty politics or personal abuse. I accept that there has been intemperate language both from our side and from members of other parties, but we must try to draw a line under the issue and deal with the matter in hand. It is important that we not only accept but defend the continuation of the independence of Scots law. If we lose that, we will lose one of the most precious things that we have and we will be cursed and damned by future generations for ever.

Photo of Roderick Campbell Roderick Campbell Scottish National Party

First of all, I, like others, wish to acknowledge the substantial contribution made to Scots law by the late Lord Rodger of Earlsferry, which is in my constituency. I am a member of the Faculty of Advocates; in accordance with its traditions, Lord Rodger was my great-grandfather and I knew him as a man to whom detail was very important. He had a distinguished career as an advocate and then as Lord Advocate, and from being a judge in the Court of Session, he had a meteoric rise to become Lord President and Lord Justice General. Following that, he became a law lord in the House of Lords and latterly a Supreme Court judge. Whatever our reservations about the Supreme Court’s role, we should acknowledge Lord Rodger’s substantial contribution to that court and to law in general.

Of course, Lord Rodger sat on the Cadder case. In the Cadder judgement, I was particularly struck by his analysis of the Thomson committee report and the history of the passage of sections 2 and 3 of the Criminal Justice (Scotland) Act 1980, which was consolidated in the detention provisions of sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995, which have caused such difficulties. His analysis was that the thrust of the Thomson committee’s view in the 1970s was that the public interest in the detection and suppression of crime outweighed any disadvantage to the detainee in being questioned in the absence of a solicitor. He believed that that was no longer compatible with European human rights law jurisprudence.

The High Court of Justiciary looked at the same issue in HMA v McLean and drew an entirely different conclusion as to compatibility with the European convention on human rights following the Salduz judgment.

Times move on. Human rights law jurisprudence is not static. As human rights lawyers know, the European convention on human rights is a living instrument. Although article 6 of the convention—the fair trial provision—makes no specific reference to the right not to incriminate oneself, that should now be considered an essential element of it.

Lord Rodger suggested that there was not the remotest chance that, had the European Court of Human Rights heard the argument, it would have accepted that, despite the absence of the safeguard of legal representation during interview, the detention procedure would somehow be considered to be compatible with article 6 because of the other protections of Scots law. That view is almost certainly correct, albeit that it is far easier to say that with the benefit of hindsight.

That argument was of course never tested in Europe. The European Court of Human Rights is not a criminal appeal court; it exists to ensure that minimum standards on human rights apply across its signatory countries. It does not try cases. Its primary impact is providing just satisfaction to a complainer where it finds that there has been violation of the convention. It is for the contracting state to bring about appropriate changes to domestic law that has given rise to the violation.

Accordingly, the European Court of Human Rights differs from the Supreme Court as it now exists in the UK. Notwithstanding the eminence of its members, that court has played a much greater role in Scottish criminal law than was ever realistically envisaged at the time of the passage of the Scotland Act 1998.

We have no written constitution in the UK. Had we had one, the provisions of the treaty of union in relation to criminal law could not perhaps have been so easily disregarded.

In their submission to the Advocate General for Scotland’s review of devolution issues and the acts of the Lord Advocate, the Scottish judiciary stated:

“By a series of incremental decisions … a major constitutional change has already been brought about in relation to the existence of a right of appeal from a decision of the Criminal Appeal Court to the Supreme Court, and that without the public consultation and careful consideration that such a major constitutional change might have been expected to receive. We cannot regard that as a satisfactory situation.”

Moreover, in criminal matters, the Supreme Court clearly does not operate on an equal footing in the different criminal jurisdictions of the United Kingdom. In that respect, the recommendation of the review group headed by Lord McCluskey that only cases certified by the High Court of Justiciary as raising a point of general public importance proceed to the Supreme Court is to be welcomed. There really should be no basis for allowing a second bite at the cherry for ordinary criminal appeals.

It is also inappropriate that, in relation to its fair trial review, the Supreme Court has the power to quash convictions, whereas the High Court may quash a conviction only on the basis of a miscarriage of justice. That issue needs further examination.

A central issue remains: how do we ensure that Scotland provides the level of human rights protection to its citizens that the convention requires? Although the expert group under Lord McCluskey agreed that the existing statutory basis for bringing human rights issues to the Supreme Court is seriously flawed, it does not suggest an alternative to Supreme Court jurisdiction.

Kezia Dugdale said that the group suggested in its report that the Supreme Court’s role may be to define and express the law applicable in human rights terms and then send the case back to the High Court of Justiciary to apply the law. As Lord McCluskey infers, that would also be an application in practice of the margin of appreciation principle that is central to European human rights law, which allows states—in this case, that ought to be Scotland—to apply the law in the context of their separate legal systems. Of course, that is not what we in my party would ideally prefer, but it requires further examination, which I believe the expert group indicated that it intends to carry out. I look forward to its further report in due course. I urge members to support the motion.

Photo of David McLetchie David McLetchie Conservative

It has been a pleasure to see the cabinet secretary back in the chamber. Having ducked the opportunity to lead for the Government on its bill on offensive behaviour at football, a subject on which he was well qualified to speak, he has now turned up in a debate on the role of the Supreme Court, a subject on which his former remarks demonstrate that he is very ill qualified to speak.

However, at least the cabinet secretary is now a lot better informed, given that, as Johann Lamont pointed out, Lord McCluskey’s report has, in essence, endorsed the approach to the role of the Supreme Court that is being taken in the Scotland Bill by Her Majesty’s Government and, in particular, by the Advocate General for Scotland, Lord Wallace of Tankerness, who is a former Deputy First Minister and distinguished member of this Parliament. I remind members that that approach is to remove acts of the Lord Advocate in his role as prosecutor from review under section 57(2) of the Scotland Act 1998, and to strictly limit the role of the Supreme Court to dealing with human rights issues that arise in Scottish criminal cases.

As we know, and as we have heard throughout the debate, the Government is doing its utmost to highlight the differences between how the Supreme Court handles appeals derived from English criminal cases and how it handles those derived from Scottish criminal cases. Accordingly, the Government’s focus is on the technical recommendations in the McCluskey report on the issues of leave to appeal and special leave to appeal.

It is, of course, ironic that the reason for the different treatment of appeals north and south of the border is not disdain for the Scottish legal system or rejection of the principle that our High Court of Justiciary is the highest court in Scots criminal law—far from it. As we will see, the difference in approach arises out of respect for our system of law.

The McCluskey report rather panders to the Scottish Government’s prejudices by stating that what the Scottish Government regards as an anomaly has been neither noticed nor explained. The implication is that, somehow, the matter has been completely overlooked by Her Majesty’s Government, its expert group and the Advocate General, but it has not been overlooked at all. In fact, the Advocate General explicitly consulted and took evidence from others on leave to appeal and special leave to appeal. As Alison McInnes pointed out, such evidence taking did not form part of the McCluskey review. Interestingly, the Faculty of Advocates and the Scottish Human Rights Commission were strongly of the view that the proposed changes to the Scotland Act 1998 should not alter the present arrangement whereby the Supreme Court remains the ultimate arbiter of whether it hears a case.

Furthermore, if Scotland were to be put on the same footing as England and Wales as regards the handling of criminal cases by the Supreme Court, all criminal cases in Scotland—not merely those that deal with ECHR or Community law points—could go for appeal to the Supreme Court, as is the case in England. That has been ruled out, quite rightly, by Her Majesty’s Government. Accordingly, it is Her Majesty’s Government that is demonstrating a great deal more respect for Scots law, Scots lawyers, Scots judges and the Scottish legal system than the SNP Government, which falsely masquerades as their champion.

Photo of Nigel Don Nigel Don Scottish National Party

I apologise for interrupting Mr McLetchie’s flow, which is always wonderful, but I put it to him that he has just skipped over the fact that it is the result of the Cadder ruling that any procedural aspect of an investigation is reviewable and the result of the Fraser review that any evidential issue is reviewable. Are we not now in the position in which practically any Scottish criminal case can be appealed to the Supreme Court?

Photo of David McLetchie David McLetchie Conservative

No. I am afraid that that is nonsense. A limited of number of cases could be appealed under the current system, and they will be further reduced when the reforms that are proposed in the Scotland Bill are enacted.

We have heard a lot about parity, but the argument might just be false. We have heard a great deal about how we have to maintain and sustain the distinct characteristics of Scots criminal law and procedure—in other words, we should be treated differently—but in the next minute, the call is for procedural parity with England. I am sorry, but we cannot have it both ways. No doubt there will be further detailed discussion about the intricacies of leave and special leave to appeal and about what is or is not appropriate in that context, and the arguments may be highlighted in the McCluskey group’s final report, but those arguments should be based on the fundamental principles of the rule of law and human rights, and not rooted in the girning grievance politics of Scottish nationalism.

No amount of exaggeration by Mr MacAskill and the SNP can disguise the fact that the McCluskey report is first and foremost an endorsement of Her Majesty Government’s approach. Its conclusions have made fools of the cabinet secretary and the First Minister on the issue, although they were already making a pretty good job of that all by themselves.

I remind members that the report states:

“We do not suggest that the jurisdiction of the Supreme Court should be ended.”

The report underlines the need for coherence in how human rights laws are applied north and south of the border and says that, if we had to resort directly to the European Court of Human Rights in Strasbourg, there would be potential for further uncertainty and delay. It points out that, far from cell doors being unlocked, cases are remitted back to the courts in Scotland for decision once the human rights issues have been adjudicated. Last but not least, it expressly acknowledges that the Supreme Court would continue to make final and binding rulings on human rights issues, including those that arise in criminal cases from Scotland.

Those are the conclusions of the report that was commissioned by the Scottish Government. They mean that it is game, set and match to Her Majesty’s Government, which is the Government that really respects Scots law and Scots lawyers.

Photo of James Kelly James Kelly Labour

I welcome the opportunity to take part in the debate. Like other members, I associate myself with the comments that have been made and the condolences on the sad death of Lord Rodger, who clearly made a substantial contribution to the Scottish legal system all the way back to his initial task as an advocate in 1974.

I thank Lord McCluskey and his working group for their work on the report, which addresses a number of matters, as the cabinet secretary likes to say. As Mr McLetchie said, the clear view on the Supreme Court playing a role in these issues is central to that report. Alison McInnes was correct to point out that the First Minister made it absolutely clear a few weeks ago that he thought that there was no role for the Supreme Court. The working group’s interim report is therefore a slap in the face for the First Minister.

Kezia Dugdale was correct to point out that it was logical for the working group to have reached such a conclusion. We are signatories within the UK to the European convention on human rights, and it makes absolute sense that there is a Supreme Court to ensure that the convention is applied consistently throughout the UK.

Some speeches from SNP members seemed to suggest that members still have their football scarves on from last week’s debate; it was as if we would all turn up at the Supreme Court and cheer on our preferred point of view. However, if we consider the details of some of the Supreme Court’s judgments, we see that the court is seeking to apply the law. Some SNP members have suggested that the judges sit down and think, “How can we make this awkward for Scotland? Can we come up with a judgment that will cause difficulty north of the border?” Mr Dornan protests, but that is how his contribution characterised the work of the Supreme Court.

Stewart Maxwell painted a picture and suggested that if only we were independent and, like other countries in the European Union, had access to Strasbourg, everything would be fine and dandy. However, Strasbourg has a backlog of three and a half years. If cases were referred to Strasbourg from Scotland, decisions would take three and a half years. That would add to costs and would create considerable uncertainty in the Scottish legal system.

In recent weeks, clear issues have arisen to do with the use of language and a lack of respect. The cabinet secretary mentioned outspoken public statements, but what he did not tell us was that he had been at the centre of many of them. As Graeme Pearson said, the cabinet secretary threatened to withdraw funding from the Supreme Court, claiming that he who pays the piper should call the tune. That was immensely disrespectful. Again, a footballing analogy comes to mind: the cabinet secretary and the First Minister have lost the match, but now they want to take away the ball so that it will not happen again.

Listening to the cabinet secretary’s comments on Monday, I felt that he had tried to row back from his position. I hope that the First Minister will row back from his disrespectful comments about Lord Hope. Such comments do not help the debate at all.

I feel sorry for SNP members in the way that policy has lurched back and forward in recent weeks; I am glad to see that Ms Cunningham has just joined us. Exactly a week ago, SNP members were on their feet telling us that we needed emergency legislation on sectarianism, and they characterised those of us who wanted to extend the timetable as being not fully committed to erasing the blight of sectarianism in Scotland.

Photo of Christine Grahame Christine Grahame Scottish National Party

Will Mr Kelly kindly acknowledge that some people on this side of the chamber shared his view on the timetable and made their views plain—perhaps even before Opposition members did so?

Photo of James Kelly James Kelly Labour

I take that point—but this time last week, members such as John Mason were saying that if we did not get the emergency legislation through it would be a disaster.

As I said, some public comments have now been rowed back from. SNP members must be looking forward to the recess. I hope that when we come back, the Government will have a more considered and stable view.

On human rights issues, I acknowledge the work of Sir David Edward and his group. Nigel Don referred to them as “the other side”, as if they were some dark, plotting group. There is a substantial archive of opinion there, which helps to inform this morning’s debate. That debate can be properly informed only if a consultation takes place—as it now will, under the stewardship of Lord McCluskey’s group. I do not understand why, once the group had been set up, there was a rush to produce an interim report. Some of the issues that we have discussed this morning are fundamental to the Scottish justice system. It would have made good sense to interview the appropriate people, to speak to the Edwards group and to take stock before reaching firmer conclusions.

There is an issue of ensuring that we get the law right. Richard Simpson and Alison McInnes highlighted the importance of an ECHR audit to ensure that we comply with the ECHR in any decisions that we make. It is also important that we provide proper training and support to our judges to ensure that they are adequately briefed on ECHR issues in order to minimise the instances in which Scottish law does not comply with the ECHR.

I endorse the Law Society’s view that we must take our time on these issues. We need a more considered, reasonable and well-informed debate. Scottish Labour supports proposals that make the justice system more effective and which are more supportive of the rights of victims. I look forward to the results of the work that the group will do over the summer and to its further deliberations ahead of producing a more comprehensive and complete report, informed by appropriate consultation.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

In the main, I welcome the contributions from members. I think that there has been widespread acceptance of the issue and welcome for Lord McCluskey’s report. In a mark of respect from around the chamber, members paid tribute to Lord Rodger. It is appropriate that Lord Rodger’s passing should be marked today by elected representatives and that we should put on record our gratitude for his contribution and our sadness at his passing.

Whatever Mr McLetchie may care to say, we welcome the report. As he is aware, the perspective of the Scottish Government and the SNP is that Scotland should be an independent nation, as with other nations that are represented in Europe, in the Union and in other institutions such as the European court. The court is not, as Mr Lamont seemed to suggest, an EU institution. Ultimately, we seek to be an independent nation and to have the same rights and powers.

While we welcome Lord McCluskey’s review, it is not the position that we necessarily seek for an independent Scotland. It is a constitutional issue that will be debated again in the chamber and ultimately decided by the people of Scotland in a referendum. However, in the interim we have to deal with the good governance and management of our legal system, and the protection of those matters that are fundamental to our civic society and democracy. We think that the present situation is the best that we can achieve in a devolved Scotland, so we are grateful for the review.

I will come to the issue of whether there should have been any delay. First, I want to deal with a point raised by Graeme Pearson, who queried why we were debating the issue. This is a matter of fundamental public interest. Those of us who were members when we had to deal with emergency legislation because of Cadder and the situations that that gave rise to are aware that that was one of the drivers not just for the Advocate General’s review group, but for Lord McCluskey’s group. They are aware that circumstances continue to cause great difficulties. Indeed, there is a question from Christine Grahame at First Minister’s question time relating to the matters that trundle on from Cadder.

Dr Simpson raised the issue of AXA. That is a case based not on human rights per se but on a challenge to the competence of this Parliament. However, such matters are of fundamental relevance to the people of Scotland, to the ability of this institution and indeed to the ability of those who work in Scotland to govern.

We should not underestimate these things. I understand that the number of devolution minutes is not 14,000 but 11,700, but that figure is probably rising by the hour. This is a fundamental issue that has to be debated, which is why we are here today and why we asked Lord McCluskey and his team to consider the matter.

Concerns have been expressed that the timescale for the review group’s work is too tight and that this is simply another case of the Government rushing to take action when a more leisurely period of reflection and inquiry might have served. However, we believe that the report itself is ample evidence that such concerns are unfounded. Lord McCluskey and his eminent colleagues have made it quite clear that there is a significant problem to address. Moreover, we believe that such major issues should be brought before Parliament. Indeed, as Stewart Maxwell has pointed out, the Presiding Officer has already suggested that such matters should be taken care of in advance rather than in arrears and in any case we think that when this kind of interim report is published we should consider it.

Clearly, this process will continue. Lord McCluskey and the members of his group will be listening to the points that are made in this debate. I believe that Alison McInnes expressed concern in that respect but, as I have said, it has been made clear that further evidence can be taken. Of course, as others have pointed out, Lord McCluskey and his colleagues looked at the evidence that had already been taken. They did not just get together on a whim or fancy. Significant evidence had been submitted both to them and to the expert group and although some might disagree with some of Lord McCluskey’s directions of travel, no one, not even Amnesty International or the Scottish Human Rights Commission, has disputed that there was an issue that had to be discussed and debated. We welcome the current position and approach.

Johann Lamont said that the situation regarding leave to appeal is not universally accepted. That is the case with some in the Scottish Human Rights Commission and elsewhere; however, even Brian McConnachie, who is vice-chairman of the Faculty of Advocates criminal bar association and someone who has been quite critical of the First Minister, said in The Times that, with regard to certification, it would be very difficult to argue that we should have something different here. Even those who might disagree with Lord McCluskey’s direction of travel or this Government’s desires recognise that this issue has to be addressed.

Photo of Johann Lamont Johann Lamont Labour

We can all pick people to reinforce our position. The view on the Labour benches is that there is an argument to be had and that we need to reflect on the serious views that have been taken from a range of people about what the solution might be. It is inaccurate to say that there is a need to establish the leave to appeal in the way that the cabinet secretary has suggested. Instead of simply pulling out people to support our individual position, which does not progress the matter at all, we want people to come to a judgment by having an open mind and listening to all the evidence.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

That is precisely why we are having this debate. Labour members cannot have it both ways; I do not think that they can criticise us for not providing an opportunity to discuss matters and then criticise us for having this debate at all. If we were not having this debate, the issues would not be brought out. I am sure that Lord McCluskey and his colleagues will consider these issues over the summer as they receive further evidence and representations, and it is a tribute to them that they have come along to listen to the debate. The points that have been raised will undoubtedly be borne in mind.

A number of Opposition members have clearly taken some comfort from the suggestion that the report does not go in the direction that would be taken by a Government in an independent Scotland. However, we should recognise that the current direction of travel—that the current situation is untenable and that we have to make progress—is becoming the majority position and has certainly been endorsed by Lord McCluskey and his colleagues.

David McLetchie seemed to be hiding behind the fact that there are clearly differences between Lord McCluskey’s review and the report of the Advocate General’s expert group. However, let me be quite clear: the review group report has taken explicit account of the work that the Advocate General’s advisers have carried out and, in doing so, has developed and moved beyond that analysis. The review group has identified what it has described as “a striking anomaly” in the current arrangement governing leave to appeal and I am sure that Johann Lamont will take that point on board. As the report makes clear, there is no evident reason why the High Court of Justiciary should be subject to a regime that is significantly different from that which applies in England and Wales and in Northern Ireland.

Despite a clarity of insight that identified the root of the problems in the Scotland Bill, the Advocate General’s advisers did not pursue the full implications of their analysis. What was lacking from the advice on which the Advocate General based the amendments that were tabled to the Scotland Bill was a proper exploration of the discrepancy in which leave to appeal can be granted. Those are crucial points of detail.

The review group’s work was robust and convincing, and it is practical in its application. The speeches from this morning’s debate tell me that I am not alone in thinking that, and I am confident and convinced that the further work that the group intends to do over the summer will produce further refinements to its advice, which will provide a sound, reliable basis on which more relevant legislative changes to the Scotland Bill than are currently on offer from the UK Government can be pursued. That is another point that Ms Lamont must take on board.

Those matters do not exist in isolation from what is happening elsewhere. The Advocate General—as trumpeted by Mr McLetchie—is tabling amendments to the Scotland Bill. If it is perceived that those amendments are deficient—and that is clearly the case, judging from what Lord McCluskey and many others have said—we require to ensure that appropriate further amendments are tabled. If we were not having this debate, there would be a danger of not having appropriate time to consider, reflect and prepare amendments.

The matter cannot be delayed. There will doubtless have to be further discussions, whether they are on the report that is before us or on the Scotland Bill as it goes through Parliament. These matters require to be dealt with, in any event.

I point out to Mr McLetchie that, as Lord McCluskey said, the Faculty of Advocates and the Scottish Human Rights Commission said that they were not really satisfied with the position—I think that Lord McCluskey took that on board. That point is being addressed.

We must be conscious that there is a difficulty, and that is why the review group was set up. I say to Alison McInnes that the group was set up with terms of reference that were prescribed not by us but by Lord McCluskey. The group was not tasked simply with determining the matter of final appeals in Scotland; it was to consider how the Scottish legal system should be protected and how it can work in the current devolved system of the United Kingdom.

Alison McInnes raised the question of an audit of Scots criminal law. It has previously been examined by the Crown, but the First Minister has said that, in his view, that would not necessarily be a bad idea. In discussion with the Lord Advocate, and once we have seen Lord Carloway’s review, we will be happy to consider where we can take that idea.

John Lamont seemed to suggest that we should appoint a further Scottish judge to the United Kingdom Supreme Court. As was pointed out by Stewart Maxwell, we do not have that right—that is a matter that goes through formal procedures, which are not the responsibility of the Government. It is only a convention that there should be two Scottish judges in the court—there is nothing in statute about it. In any event, it is our understanding that, when the court sat, it was a bench of seven.

That covers the position that we find ourselves in. The situation is not one that anybody anticipated—whether at the time of the signing of the treaty of union or at the time of drawing up the Scotland Bill that set up this institution. It is not a question of apportioning blame on individuals about where we are; it is about realising that there is a fundamental concern. The Cadder position caused concern and, whatever Graeme Pearson might say about Salduz v Turkey, the matter had been considered by a High Court of seven judges in Scotland, and the position was accepted as being appropriate in Scots law and as being compliant. That started not under my Administration, but when there was a Liberal-Labour Administration. No justice secretary and no Lord Advocate under that previous Administration thought that the Scots judges were out of kilter. For those parties to criticise the Scottish judges for not acting, when they formed the Administration, is frankly unacceptable. There is an issue there.

Scots law has to be given parity with jurisdictions elsewhere in the United Kingdom. That is accepted by the likes of Brian McConnachie, who is no supporter of either myself or, indeed, the First Minister.

The Supreme Court has a role in a devolved Scotland, as we accept, until that is changed by the outcome of a referendum. It should be for the High Court of Justiciary ultimately to apply the law in Scotland. Matters can be considered and the law decided by the Supreme Court; the ultimate applier of it in Scotland has to be the High Court of Justiciary. That is what was meant when we signed up to the treaty of union. That is what was meant when we signed up to the Scotland Act 1998 and to forming this Parliament. That is what was meant when the Human Rights Act 1998 was passed and the Supreme Court was established. That is why there has to be change. That is why this matter has been brought before the chamber.