Belatedly, I say good afternoon to everyone. Welcome to the Scotland Bill Committee’s ninth meeting in session 4. I remind those present that, unless they have been told otherwise, they should turn off their mobile phones and BlackBerrys, which can interfere with the sound system. I do not think that such devices interfered with the sound system before the meeting started; that problem related to something altogether different.
To save a little time, I did not plan to make an opening statement. I served on the United Kingdom working group that the Advocate General for Scotland set up and which Sir David Edward chaired, and I will put my position succinctly.
Welcome to the meeting, Mr McBride. You have stated your position succinctly. As you endorse Lord McCluskey’s recommendations, what is your view of the Lord Advocate’s proposed amendments to address the issues in the Scotland Bill?
As I understand it, the Lord Advocate has put forward several proposals and amendments, and parliamentary draftsmen will obviously deal with some of the issues that he has raised.
Certification is controversial. Critics such as the Law Society of Scotland oppose certification on two grounds. The High Court of Justiciary has been criticised for its interpretation of the European convention on human rights in some decisions. It is also alleged that a hierarchy of rights could emerge—cases of general public importance would be certificated, and others would not—and that access to justice for some individuals whose rights had been breached could therefore be limited. What is your response to those criticisms?
It is dangerous for the Law Society to proceed on the basis of what appears to be a couple of individual controversial cases—presumably the Cadder case and the Nat Fraser case. To be critical of particular judges for the decisions that they have taken is one thing; to extend that to a general principle that somehow judges in Scotland cannot be trusted to work out what is a matter of general public importance to the people of Scotland is a leap too far.
On that point, are you confident that, if there had been a certification procedure in place in Scotland, the High Court would have issued such a certificate in the case of Cadder or McLean? I know that that is hypothetical, but you can see what I am driving at. Can we be confident that we would not end up in a situation in which, because a certificate was not issued, Scotland could be deemed to have acted outwith ECHR compliance for a number of years before a case was ever heard at Strasbourg? That situation could have far-reaching impacts for a number of years to come.
I appreciate what you are saying. I spent the first 10 years of my career at the bar in front of the court of appeal, and we can never second-guess what the appeal court or any court will do.
You indicated that there was quite a lot of overlap between the McCluskey recommendations and the Edward group, on which you served. What was the Edward group’s thinking on certification?
The Edward group never really got to look at certification; the issue was not a direct part of the group’s remit. We were primarily concerned with whether people in Scotland should have access to the Supreme Court at all. We came to the unanimous view that they should, and Lord McCluskey’s review also came to that view.
I understand what you are saying, but I just want to be clear about how the Edward group considered the certification issue. I understand that two submissions to the group supported certification. Was any consideration given to those submissions?
The report’s conclusions show that we addressed certification. The group was primarily devoted to the issue of whether there should be access to the Supreme Court from Scotland. There was a body of opinion, including some judges, that there should be no access at all to the Supreme Court from Scotland if the Scottish appeal court said no. Lord McCluskey’s group has come to what appears to be a sensible middle-road conclusion that, if certification is granted that the matter is of general public importance, access to the Supreme Court can be gained.
We heard evidence last week from the Law Society of Scotland and the Faculty of Advocates, which seemed to argue—I hope that I do not misrepresent them—that we are not comparing like with like on certification. They seemed to state that we should compare our system not with the appeal court in England but with the systems in other devolved areas such as Northern Ireland because the issue is not about appealing criminal cases, for which certification is not required, but about devolution matters. They stated that, in that regard, the Supreme Court is a constitutional court.
That is a classic lawyer’s semantic distinction—it really does not mean anything at all. The real question is: if you live in Scotland, do you effectively have the same rights as somebody living south of the border? It does not matter whether it is dressed up as a devolution matter.
Mr McBride, you will be aware of the letter that the committee received last week from Lord Hamilton, the Lord President, generally supporting Lord McCluskey’s recommendations, in particular on certification. In your opinion, how significant is that letter?
It is a very significant letter. I had thought that such a letter might have been written sooner, but the judge correctly decided to wait for the publication of the full report rather than simply the interim report.
How significant would it be if the Lord President’s recommendations were ignored in the Scotland Bill, which we are considering and which is going through at Westminster?
We then stray into a matter of politics—and I am very conscious that the issue has, to a degree, become a political one.
I am struggling to understand what practical difference certification would actually make. Surely an issue of human rights and a failure to meet our international obligations would be regarded as a very serious issue that probably requires to go to the Supreme Court. Why is certification necessary when we would have the further filter of all applicable cases having to apply for leave to appeal to the Supreme Court?
It is very important to have certification because, if we do not have it, people will simply be able to bypass the highest court in this land, which has been the apex of our system for a significant period of time, and go to a court down south. They will simply bypass the views of the judges here on leave to appeal, when that system does not apply in another part of the country. If the Supreme Court in the United Kingdom is to have consistency, it is very important for there to be a consistent approach to those who are able to enter through its front door. At this moment, we do not have that.
We are not really talking about consistency. The Supreme Court plays a role in criminal matters in Northern Ireland, Wales and England, but we are not talking about extending that appeal court to Scotland, because we have a separate system.
It is very difficult to predict that. I was not on Lord McCluskey’s independent review group, and he might have access to those statistics, but I made some inquiry and I understand that a great number of applications for certification made down south are refused. I do not know what the statistics are, because I do not have access to that information.
I think that you said that we cannot have a process that allows us to bypass the highest court in the land. However, we are not talking about a bypass, because the court will have adjudicated on the matter in question. It is an appellate process, not a bypass process.
If someone goes to the appeal court but their appeal against conviction is refused and they then apply for leave to appeal to the Supreme Court but the appeal court says no, that is pretty much be the end of the matter in England. In Scotland, it is not the end of the matter, because they can apply to the Supreme Court down south for special leave to appeal. Such people are bypassing the decision of our court and going directly to the Supreme Court to ask it for leave to appeal. People cannot do that down south. All that Lord McCluskey’s review group suggested was that we have an equivalence between Scotland and England.
I find one thing slightly puzzling in terms of the attitudes to the issue. Time and again we hear about the unique system of Scots law, how it must be preserved and protected, and how different it is from legal systems elsewhere in the United Kingdom—which it manifestly is. However, when Her Majesty’s Government and the Edward group come up with proposals that, in their view, respect that difference, why is it that all the people who say that Scots law is unique and has to be protected start complaining that we have to be treated the same as England?
I am not suggesting that we are being discriminated against; I am just saying that we are not being treated on the same playing field.
The McCluskey report said that the number of judges in the Supreme Court is not a problem.
It is not a problem, although there is perhaps an issue of perception. When I used to appear in the predecessor of the Supreme Court—the Judicial Committee of the Privy Council, which was held in Downing Street—it had the power to involve more Scottish judges to deal with matters that were exclusively Scottish. In fact, Lord McCluskey might even have been eligible to be one of them. That power is not available to the Supreme Court, which has an in-built majority of non-Scottish judges.
Do you agree with the proposition that many of the difficulties that are under consideration arise because the Lord Advocate is not only head of the prosecution service but a minister in the Government? That is significantly different from the situation that pertains in the rest of the United Kingdom, where the independent heads of the prosecution services are not part of the devolved Administration or Her Majesty’s Government. Is that not the root of the problem?
No, I do not think so. The Lord Advocate has made suggestions, understandably and correctly, about removing his role from certain parts of the legislation.
He could remove himself entirely if he was simply a prosecutor and another person was a minister in the Government providing it with independent legal advice. That is exactly what happens in Her Majesty’s Government and in the devolved Administrations in Wales and Northern Ireland, is it not?
I have not heard it suggested seriously by anybody that the independence of the Lord Advocate is in any way compromised, or even perceived to be compromised, because he has a role in the Crown Office and in public law matters relating to the Government.
I am not sure about that. Several writers on constitutional law would say that we have inadequate separation of powers in Scotland and that the development of most jurisprudence suggests that we should separate those offices.
That is perhaps a matter for debate for another day, because I am not sure that it relates to the bill.
If I understand them correctly, the Lord Advocate’s amendments relate to criminal proceedings only, so the legislation will not cover all acts of ministers and public bodies in any context, although I might be wrong about that.
We can clarify that with the Lord Advocate later.
I have a question about the difference between appeals on convention rights and those on criminal cases. Obviously, in Scotland, appeals to the Supreme Court can relate only to convention rights, whereas, as Mr Rennie said, in other jurisdictions there can be appeals on criminal matters. I imagine that many of the instances in England in which leave to appeal is not granted relate to criminal matters. How significant is it that, in Scotland, only matters relating to ECHR compliance can go to the Supreme Court? Does that not create a material difference that might need to be reflected in the process?
The proposal is that the Lord Advocate and Advocate General will retain the right to refer cases to the Supreme Court. They will be able to identify early in the process cases that raise potentially significant breaches of ECHR and refer them directly to the Supreme Court.
That is an important point. Would it not create tensions with the judiciary if the Lord Advocate or Advocate General made decisions at that stage?
There are always tensions between the Lord Advocate and the judiciary—and between Parliament and the judiciary and between this Parliament and the Westminster Parliament. Tensions are part of the way in which the system operates. We hope that, if we have sensible people occupying all those positions—as we have at present—the tensions can be resolved appropriately.
I have a quick supplementary question on your comments about the dominance of English judges in the Supreme Court. Obviously, there are two eminent Scottish judges but, hypothetically, if those two judges disagreed, the onus would be on each of them to persuade the English judges to support him or her. Would we have a human rights issue if, in such a case, a majority of English judges went against one Scottish judge?
It is not entirely unheard of for the two Scottish judges to disagree. We do not know who will replace Lord Rodger in future.
Mr McBride, I would be grateful if you would confirm my impression from what I have heard that you support the Lord Advocate’s comments on Lord McCluskey’s report and the way in which the bill should be amended.
Yes, I fully support the Lord Advocate in that respect.
Thank you for coming. Your evidence is much appreciated.
I welcome Lord McCluskey and Sheriff Stoddart and thank them for coming along. I understand that Lord McCluskey would like to make a statement to outline where things currently stand.
Thank you for the opportunity to give evidence. Sir Gerald Gordon and Professor Neil Walker, the other two members of the review group, are unfortunately unable to attend today as they are both abroad.
Thank you very much, Lord McCluskey. I will open questions by referring to devolution issues. It seemed plain at the time of the Scotland Act 1998 to all the lay people who read it what devolution issues were. You used strong language in describing the current application as constitutional nonsense.
Those are the words of David Edward.
But you echo them.
I do.
The Lord Advocate, on behalf of the Scottish Government, has perhaps been a little kinder in talking about unintended consequences, to paraphrase him. Given the ingenuity of lawyers that you talked about, could there be a reluctance by those who drafted the interim measures that you spoke of to admit that they got it wrong in the first place?
There might be, but I am not a psychologist and I do not have that insight into human nature. Forgive me if this sounds too simple, but if I go to a pet shop, buy a little puppy and take it home, and my wife decides to call it Felix the cat, a mistake has been made. We do not change the nature of a thing by giving it a name. The nature of the Lord Advocate’s exercise of his retained functions was not a matter of devolution, because it had existed for centuries before devolution and remained unchanged afterwards. So, to call it a devolution issue was just a mistake.
I will ask you more about the issues around the certification procedure. There has been discussion at this meeting about the equity of the Scottish courts and other courts in different parts of the United Kingdom. Of course, the courts in England, Wales and Northern Ireland have the certification procedure, but they deal with criminal matters and not only with convention rights. Quite rightly, as you said, there is no avenue of appeal in Scotland to the Supreme Court in criminal matters. However, there is obviously an avenue of appeal in relation to convention rights. Is that not a significant difference in the courts’ processes, and should it not be reflected in way in which the process of appealing to the Supreme Court is handled in Scotland?
I would say not. The first thing to remember is that certification is a fairly modern phenomenon. There was no appeal to the House of Lords in criminal cases in England until 1907. Thereafter, appeals were allowed but only if the Attorney General certified that there was a point of law of general public importance. That was changed in 1960 so that the apex court had to decide that question and not the Attorney General. Relatively few cases have gone through in that regard.
I have a final question. It is fair to argue that the cases that the Supreme Court has taken up from Scotland have not been trivial. If the Supreme Court had not made a decision on Cadder, the Scottish system might have been deemed not to be compliant with the ECHR for some years to come, and that would have had far-reaching consequences. I know that this is a bit of crystal ball gazing—a hypothesis—but are you confident that, if the Scottish courts were able to grant leave to appeal to the Supreme Court, they would have done so in the case of Cadder and in similar cases?
I will speak for myself and not for the review group. Cadder was a wrong and bad decision, and I have written an article for the Edinburgh Law Review explaining in some detail why that is so. You can get access to it on the website.
The case was Horncastle.
Horncastle. That case is pending. We were not robust enough to deal with it.
So you would have been happy enough under the new system if the Cadder case had not been referred by the Scottish courts to the UK Supreme Court. Would you have been satisfied with that outcome and, as far as you are concerned, would that have been the right operation of the procedures in Scotland and throughout the UK?
The procedures that were overturned in Cadder were practised for 30 years. A committee that was led by Lord Thomson, who was one of our leading criminal judges, and which included the then deputy Crown Agent, Laurence Dowdall and various other people, devised the system. It worked well and was much praised by Hope and by Rodger. Yes, I would have been reasonably happy. If those involved in the case had wanted to go to Strasbourg, they could have done so, and perhaps that would have made a difference.
Other countries—Belgium and Ireland, for example—face the same limits. Other jurisdictions are in exactly the same position as Scotland.
They are all continental countries. They do not have the adversarial system that we have here, which is quite different.
I am glad that you raised the case of Regina v Horncastle, because I was going to ask you a little more about it. My understanding is that the court, under Lord Phillips, judged that the Supreme Court was not bound by ECHR precedent and that it was particularly concerned to find in a particular way because a different finding would have disrupted the strength of common-law tradition in England. Could you say a little more about why you think that the Supreme Court came to that conclusion to protect English law but came to a completely different conclusion in the case of Cadder?
I do not quite know. Horncastle was referred to as a kind of footnote in Cadder and it was not examined—I do not know why. The position is that the judgment that the Horncastle court refused to follow was a judgment of a chamber of five or seven judges. The court said that it was not bound by that judgment and that it needed to send the case back for the whole chamber of 19 or so judges to consider, and that if they made a new ruling, it would become binding. The same could have been done in relation to Cadder. In my view—this is a personal view—it should have been said that because the Turkish court in Salduz ignored the common law and, in particular, was ignorant about and did not mention the Scottish system, the judgment should not be followed until the court says that it was an absolute rule that must be followed.
You also said that you wanted us to reformulate some of the questions that we put to Paul McBride. I will not reformulate the question, but I will perhaps ask it again. Would the hypothetical situation in which the two Scottish judges on the Supreme Court disagreed and had to get the English judges to back either one of them or the other raise a human rights issue as regards a fair trial?
I think I have already indicated the answer to that. When you are sitting in the Supreme Court, your job is not to decide what the Scots law is, what the English law is or what the Northern Irish law is. Your job is to decide what the European convention prescribes as the law applicable throughout Europe. If one Scottish judge thinks one thing and another thinks something different, the majority in the court decides the question and the answer is sent back to Edinburgh, where Edinburgh applies it. In similar cases, the answer would be sent back to Belfast, where Belfast would apply it. That is the way to do it. It does not matter if judges disagree. In other words, contrary to much popular thinking, if the Supreme Court does its job, which is to interpret the European convention, it does not need a predominance of Scottish judges in a Scottish case, because the law will be the same for the Scottish case as it is for the Northern Irish case, although its application it will be different. We have a different system, with a 15-man jury and a majority—eight to seven—verdict, different police practices, different rules of evidence and so on.
Thank you. Finally, on another question I asked Paul McBride, what do you think would be the significance if Westminster decided to ignore your recommendations and the letter from the Lord President?
The significance is that we would be left with a system that David Edward properly described as “constitutionally inept” and which I have described as egregious nonsense. Forgive me for being direct, but there is not time to be polite. We just tell the truth.
Are you satisfied that the system of certification proposed by the review group is sufficient in protecting individuals’ rights?
Yes. How are an individual’s rights in relation to the convention protected in Belfast? The answer is that they are protected by the apex court in Northern Ireland—the Northern Ireland criminal appeal court. How are the rights of a person in Cardiff or Birmingham protected? They are protected by the court of criminal appeal sitting in London. In other words, the local apex court is charged with the responsibility of safeguarding their human rights. If, however, a person raises a point of law of general public importance, they should by all means go to London and get a ruling on it from the Supreme Court. Individual rights are protected now, as they have been since 1707, by the High Court of Justiciary.
Are you content and satisfied with the Lord Advocate’s proposed amendments to the Scotland Bill? Will those fulfil all the recommendations in your report?
I will make a couple of points. First, we stood back. We could have joined in with the Lord Advocate to help to draft the amendments, but we decided that we would not do that. Secondly, the actual terms have not been seen by Professor Walker and Gerald Gordon, although Sheriff Stoddart and I have both seen them. I have a number of criticisms; in fact, I think that there are two errors in the draft and I will be happy to point them out.
Would you like to give us a hint? The Lord Advocate will be in front of us later in the afternoon.
If you want, I will give you the precise example. I do not know whether you have the amendment before you. Subsection (8) of the new clause that the amendment seeks to insert in the bill proposes to insert new section 288ZA into the Criminal Procedure (Scotland) Act 1995—I may say that the numbers become pretty hideous because we legislate too much. Proposed new section 288ZA states:
I have this wonderful image of the Lord Advocate sitting at this moment biting his nails and hundreds of Government legal clerks running about.
Not before time, if I may say so. [Laughter.]
Follow that, Willie Rennie.
Perhaps you can help me clear something up, Lord McCluskey. I came to the meeting partly of the belief that the issue was about the place of the High Court in Scotland, but you have confused me. You say that you would have come to a different view on Cadder. We have already established that the Supreme Court has a role in human rights issues, and that it is expert and competent enough to do what it is doing in that regard. However, if it had been up to you, you would have done something different here, and the Cadder case would not have gone to the Supreme Court. That is my understanding.
No, that is wrong.
Following on from that, would the introduction of certification make a practical difference to the number of cases that the Supreme Court would hear?
It is possible that there could be a reduction in the number of cases that it would hear. I do not want to go on at enormous length, but the advantage relates to the fact that the whole character of the Human Rights Act 1998 is to give rights to people against a public authority. Therefore, if, for example, I were to murder Mr McLetchie—I have no such thoughts—
Justifiable homicide.
Mr McLetchie’s relatives might think that his right to life had been interfered with, but because I am not a public authority, they would not be victims of that violation of his right to life. However, if I were to appear in a court charged with the crime of murdering Mr McLetchie, I would have rights, which would derive from section 6 of the Human Rights Act 1998. There is something odd about the fact that the whole focus is on the rights of accused persons, whereas the rights of the victims of most crime are not taken into account at all. There is something bizarre about that whole thing, which needs to be looked at, but not in the present context.
You probably heard my questions to Paul McBride about certification. In particular, I tried to articulate the Law Society’s criticisms of certification and—if I interpret the Law Society correctly—the potential creation of a hierarchy of rights. Either one has rights that are of general public importance as certificated by the High Court of Justiciary or one has rights that are not of general public importance, in which case breach of those rights cannot be appealed to the Supreme Court. How would you answer those criticisms?
I have tried to indicate the answer. Sixty million people are subject to the jurisdiction of the Supreme Court and those who live in England, Wales or Northern Ireland have the same rights as those who live in Edinburgh or Dundee. In the vast majority of cases, their rights are defined by the local apex court—the court of criminal appeal or whatever it is called in Northern Ireland. We trust the judges in the local court, who know the conditions because they live in the area and were brought up in those conditions, to apply the law and confer people’s rights on them, and the court does that. In the exceptional case where there is a point of law of general public importance—that is, UK-wide importance—it goes to London.
That might be an argument for doing away with certification all together.
It might be. We deal with that in the report. In particular, we appended to it an interesting article from the Law Quarterly Review that narrates, correctly, that there is a sense in England that certification should be withdrawn. That idea has come up from time to time and Parliament and ministers have considered it, but they decided not to withdraw it. If they decided to end certification for Belfast, Cardiff and London, that would be the time to end it for Scotland too, and I would join in and say yes.
Paragraph 8 of the executive summary of your report states that, if there has been a breach of a convention right,
That is a big question because it also concerns the acts of the Lord Advocate. I hope that Sheriff Stoddart will be able to deal with that.
Yes, indeed. As you will have gathered, we were very supportive of the Advocate General’s group when it suggested that acts of the Lord Advocate should be taken out of the realm of devolution issues. Unfortunately, clause 17 of the Scotland Bill keeps that focus as it still refers to the Lord Advocate’s acts or failures to act as being the key to the Supreme Court. We recommend that it should be broadened to cover the acts of any public authority by focusing on the nature of the right and the protection given by the right rather than naming a particular public authority that might be responsible for that.
You must remember that the Lord Advocate could find himself in this situation. He is prosecuting A. He decides that he cannot ask a Cadder-type question because A was interviewed without a lawyer being present. When B’s turn comes to cross-examine the policeman, he introduces the evidence that the Lord Advocate could not introduce. The Lord Advocate stands up and says, “You can’t do that because of Cadder,” but the sheriff or judge says, “This is a different type of case, so I am going to allow that evidence.” The evidence is therefore allowed over the objection of the Lord Advocate but, for the case to be brought before the Supreme Court, that must be called an act of the Lord Advocate. That is just one instance—we have thought of at least another half dozen—in which it would be wrong to focus on the act of the Lord Advocate. The focus should be on the right of the person under the convention.
I will give another example, which we used in our discussions when we were formulating our report. Under article 6 of the convention, the accused person has a right to have the proceedings interpreted into a language that he understands. A foreign accused in Scotland is therefore entitled to an interpreter. Under the present arrangements, it is not the Lord Advocate who provides the interpreter; it is the Scottish Court Service on behalf of the court. If the interpretation of the proceedings is faulty and is challenged, it is the court that must do something about it. If the court does something that is not convention compliant, there may be a breach and, under the present law, that might—if it could be fitted into the straitjacket of the description of an act of the Lord Advocate—lead to an appeal to the Supreme Court. We thought that it would be much cleaner and clearer to remove any reference to the act or failure to act of the Lord Advocate and to say simply that the right has potentially been breached by a public authority and that that is justiciable and raises a compatibility issue. It has nothing at all to do with the Lord Advocate, who did not provide the interpreter and does not have to.
I am very clear about the apparent flexibility of acts of the Lord Advocate in recent years, which has been mentioned by a number of people. However, let us return to the practical implications of the power as it stands in the Scotland Bill. You have talked about emergency legislation having to be introduced to deal with the Cadder situation and the fact that the act is deemed unlawful or void, as though it had never existed. In the rest of the UK and in other European jurisdictions, is that not the case? I understand that they have time to stop and consider what action should be taken in the light of a decision. Is Scotland the only jurisdiction in Europe in which that problem arises?
I do not know whether Scotland is the only such jurisdiction, because Europe has 47 jurisdictions and I am familiar with only one and a half of them—the Scottish one and that of the rest of the United Kingdom. People might well say that the effect is direct; I do not know about the situation.
Is Scotland the only such jurisdiction in the UK?
In the UK, you must proceed under section 6 of the Human Rights Act 1998, which was carefully designed—Derry Irvine, who wrote it, got a lot of praise for it—to preserve the UK Parliament’s sovereignty. Instead of saying, “This is void and must be quashed,” all that the court can do is make a declaration of incompatibility. It is then up to Parliament or whatever the public authority might be to change its rules and procedures. If Parliament has enacted something that the court says is illegal, as in the Belmarsh imprisonment cases, Parliament must change the rules for the future.
That is clear.
Mr Rennie can ask a short—I repeat short—supplementary.
I am trying to gauge the importance of certification. In answering one of my questions, you said that certification would reduce the number of cases going to the Supreme Court. Then you said that, if England and Wales and Northern Ireland decided not to have certification in the future, which they have considered in the past, you would fall in line with that. What are the value and purpose of certification in its own right? As you would give it up so easily if the rest of the UK decided not to have it, how important is it?
I have tried to deal with those points, on which we say something in the report. As a Scot and as a lawyer who inherits a wonderful tradition of unique criminal jurisprudence, I find it deeply offensive that an act of Parliament—a devolution act—says that, although the apex court in Belfast or in London decides such questions, we cannot trust the Scottish judges to do it.
You say that, if England and Wales and Northern Ireland decided to do something different, you would go with that. That does not sound like pride in independence, does it?
If it was decided that certification was not required in Belfast or in London, I would be happy to say, “Okay, we’ll go along with that.” Why should we differ on what is ultimately a question of the court’s definition of a human right under the convention?
I call David McLetchie.
I am pleased to have survived proceedings so far.
As you know, the powers of the Strasbourg court are very limited. It can make declarations, award damages or make a very strong recommendation that there should be a retrial or something of that kind, but that is all. Take for example the case of the child who was kidnapped by two other children in Liverpool. What was that case?
The Bulger case.
That case was held in Strasbourg to have involved an unfair trial of the two accused—end of story, because Strasbourg has no power to do anything about it. If the Horncastle case is decided in favour of the Supreme Court’s ruling, that is well and good—end of story, and I will regret even more that we did not do the same in Cadder. However, if Strasbourg decides against the Supreme Court, it raises a huge political and constitutional question: are we bound by a ruling of that kind, which takes no account of our position?
Thank you for that.
Yes, but that is the point that we make, which is fundamental: if legislation or acts of ministers that are truly executive acts are struck down, that is a vires question. We are quite happy that such things should go to the Supreme Court and, if necessary, to Strasbourg. If they go there, the end result will be that, inevitably—we have done it hitherto—we in the United Kingdom say that we will obey the rules and change the law by repealing or amending the legislation so that it conforms with what the ruling of law is.
I see that. You said that that would be a vires question. If I understand this correctly, the Lord Advocate’s proposal removes as a devolution issue, in relation to criminal law or procedure, an act of the Scottish Parliament.
I think that that is another one of the blips that we are looking at.
That is very interesting, because I think that it is a blip that has been identified by the Law Society in the paper that we have.
Could you direct me to that particular proposal?
I think that it is in the section headed “Convention rights and EU law: appeal to Supreme Court” in the paper supplied by the Lord Advocate. It attempts to follow on from your own recommendation about contracting the scope of what is a devolution issue and expanding the scope of what is a compatibility issue. Is that not right?
Well, I think that we are going to be critical of that. I say “we”, but I should say that I will be critical of it, because I have not been able to consult my colleagues about it. There is a flaw there.
Right, because that would be a vires issue for any other act of the Scottish Parliament.
It is a vires issue. Quite simply, if the Scottish Parliament passed an act saying that, in a sex abuse case, the accused would be presumed guilty until proved innocent, that would plainly be a contravention of the European convention on human rights, but it would be a vires issue: the Scottish Parliament does not have the power to legislate contrary to the convention. That is fairly straightforward.
That is very helpful. May we have the benefit of your general view on the sustainability in the long term of the position of the Lord Advocate as both a prosecutor and a minister in the Government?
We will both say something about that, if we may. I was the Solicitor General for a number of years and, with the Lord Advocate of the day, I had responsibility for the exercise of the retained functions. Never in my experience nor, indeed, by hearsay from others, was there any hint of an attempt by the political power to interfere with the exercise of our jurisdiction, even when there was a big political point, as there was, I remember, particularly in relation to the blockade of harbours in about 1976. No minister approached us at all. We made our decision. In fact, there was a kind of glass wall between the Lord Advocate and the others when it came to the exercise of the retained functions. I regret the decline in status and power of the Lord Advocate and I have written about that. I do not think that we need to go as far as creating a director of public prosecutions, but we could. However, I do not think that that question, interesting though it may be, arises in the context of this amendment in clause 17.
No, but it is the root of a lot of the problems, is it not?
No; it may be the cause of the mistake. The mistake that was made by section 57 of the Scotland Act 1998 was suddenly to stick the Lord Advocate in as if he were the minister of public hygiene, or sewers, or something of that sort, which he is not. A different kind of sewer, of course, is the Lord Advocate’s field. The Lord Advocate was exercising his retained functions. It was nothing to do with devolution and that is why we recommended that this alteration should be made not in the Scotland Act 1998, but in the Criminal Procedure (Scotland) Act 1995, and I am happy to see that the Lord Advocate has picked that idea up.
This is in a similar vein to one of the points that Mr McLetchie made. You have outlined your position on certification for compatibility issues. From your study of the cases for which an application has been made to the Supreme Court, do you think that it is possible for a case to contain both a devolution issue and a compatibility issue? Under your report recommendations, how would such a case be dealt with?
A devolution issue might be a compatibility issue, but not all compatibility issues are devolution issues. That is the simple answer. All admirals are sailors, but not all sailors are admirals. That is the position—you can have a compatibility issue of the kind that Mr McLetchie mentioned a moment ago whereby a statute enacts something or a minister does something that is in contravention of the rights that are contained in the convention. That is a vires issue and it is a devolution issue. When the Lord Advocate exercises his or her retained functions, that is not a devolution issue at all—that is the dog called Felix the Cat.
Does that not potentially create inconsistent routes to the Supreme Court, under your proposals?
No, no; it just adopts what was done in the British Commonwealth for years in the Judicial Committee of the Privy Council. You create a subordinate body and, with all due respect, the Scottish Parliament is not a sovereign body; it is a creature of statute. You create that, you give it certain competences and, if there is a suggestion that it breaches those competences and steps outside them, that is a devolution issue. You give a constitutional court the power to rule on that—that is what the Supreme Court is; a constitutional court—but when it puts its human rights hat on and is dealing with the retained functions of the Lord Advocate, it is not a constitutional court in the same sense. We have tried to draw that distinction and I hope that it is fairly clear in the report.
So if there are two issues in one case, two applications could be made to the Supreme Court by two separate routes.
I do not think so. First, the matter would not reach the Supreme Court, under our proposals, until the final determination of the proceedings—that is what the Lord Advocate is proposing, which we agree with. The Supreme Court then sits down with all the facts and arguments in front of it and considers the alleged violations of the convention rights, which might be purely to do with an incompatibility with retained functions or might bring into play vires issues, and makes its decision. There would be no separate routes; there is only one route: the section 6 of the Human Rights Act 1998 route, basically.
If you are saying that going down the certification route that you are proposing would be restricted to compatibility issues, what would be the route if it were a devolution issue, under the same case?
I do not see how that is going to arise. I do not know how an act of the public authority in the course of the criminal proceedings can be raised in the same case as a separate vires question about whether the Parliament had the right to legislate in those terms.
You think that a situation would not arise in which there would be a devolution issue and a compatibility issue in the one case.
Can you give me an example?
I do not have an example to hand.
It is not just a case of one being to hand, I am afraid; it is whether it is in one’s head. I cannot think of one at the moment.
To return to my original question, from the knowledge of the cases that you and the review group have studied, are you aware of any cases where there might be a devolution issue and a compatibility issue in the one case?
Not both. Some of the cases were indeed true devolution issues. For example, section 170(2) of the Road Traffic Act 1988 says that you can demand of a driver of a car that he say who was driving the car at a certain time and a certain place, and he must answer, under penalty. That sort of rule has been challenged in various places, including in Canada, as a breach of human rights. I can see that arising. However, it is difficult to see how it would arise in the way that you suggest.
I know that it will annoy you if you cannot think of one. You are welcome to write to the committee after further reflection.
If I can think of one, I will write to you with the details. If I cannot, the letter will be very short.
I am sure it will.
You will find that our reasoning on that is contained clearly in the report. In essence, however, the Supreme Court must apply the test of whether there has been a violation of the right to a fair trial. The test that we apply in Scotland in relation to certain types of case is the miscarriage of justice test. Unfortunately, as Lord Cullen has pointed out, the term “miscarriage of justice” is not known in England, Northern Ireland or Wales. They do not use that term; they use different ones. The Supreme Court will sit down and say, “What does ‘miscarriage of justice’ mean?” An Englishman, an Irishman or a Welshman will say, “I have never heard of such an animal—what is it?” The only way that they can find out what it means is to look at previous cases in Scotland. You would get a bizarre situation in which people were trying to understand the meaning of that term and also the interplay between that on the one hand and “unfair trial” on the other. Do they mean the same thing? In that case, the reference to miscarriage of justice is superfluous. Do they mean different things? In that case, where do we go? It is very confusing.
I thank both of you for coming. It has been an extremely interesting session. If members would like anything further clarified, may we write to you?
Yes. I will write a short letter in answer to the question that Mr Kelly asked. At least, I hope and believe that it will be short.
Thank you for that, and for the attention that you have given us. It is clear to me that you want to get this right in the interests of the integrity of the law of Scotland.
I welcome the Lord Advocate and thank him for coming along. I invite him to introduce his team and give us a short opening statement before we move to questions.
Thank you, convener. On my far right is Fraser Gibson, who is head of the appeals division in the Crown Office; to my immediate right is Elspeth MacDonald, who is head of the constitutional and parliamentary secretariat and to my immediate left is Alison Coull, who is in the constitutional and civil law division.
Thank you very much, Lord Advocate. I thank you, too, for your letter and your draft illustrative provisions. You will have heard Lord McCluskey’s evidence earlier. If you did not, I am sure that your officials did. In that regard, would you like to comment on the number of flaws and blips?
I think that you referred, convener, to officials biting their nails. I can tell you that the officials were not the only ones biting their nails. We will obviously take on board what was said, but we need to find out in greater detail what Lord McCluskey’s concerns are. I heard only one of them articulated in this forum, so I do not think that it would be appropriate for me to comment in detail on them. We need to find out what the concerns are and ascertain whether they need to be addressed. I am sorry if that does not sound very helpful, but I can promise you and the committee that once we have had the opportunity of considering Lord McCluskey’s concerns, we can write to the committee with the Scottish Government’s position on them.
Thank you very much. That is appreciated.
Lord Advocate, you refer to the fact that your amendment retains the right of the Lord Advocate or the Advocate General for Scotland to require the High Court to refer a question to the Supreme Court for determination. I will ask a hypothetical but important question. If that system had been in place for the Cadder judgment and the Scottish court had not given leave to appeal to the UK Supreme Court, would you have used your right to refer the matter to the Supreme Court?
No application was made to the High Court of Justiciary for leave to appeal to the Supreme Court in the Cadder case. The matter was dealt with in sift, and there is a different test in sift.
Absolutely. That is why I am asking a hypothetical question. If that case were dealt with under the new system and the proper process gone through, but the court decided not to give leave to appeal to the United Kingdom Supreme Court, would you decide, with the powers that you would retain under your amendment, to intervene in that situation and refer the matter to the UK Supreme Court?
My direct answer is that I would look at the two full-bench decisions in Paton v Ritchie, in which five judges were involved, and the McLean case, in which seven judges were involved, and take the view that the law was clear, that there was not an issue, and that there was compatibility. Therefore, I would not exercise my power to refer the case to the Supreme Court.
But the Advocate General could.
He could, if he considered that there was a point that should receive a determination by the Supreme Court. However, I hope that I have answered your question directly.
It is sensible to consider what future decisions and the future direction of jurisprudence at the European level might mean for us in Scotland.
It is already in place.
Have there been any problems with it?
I do not have a problem with it. If the Advocate General were concerned about a specific issue and wanted the determination of the UK Supreme Court, I would be content with that. I will give you an example. One of the sons of Cadder cases, Ambrose v Harris, which has, in the past month, been advised on by the UK Supreme Court, was a referral by the Lord Advocate seeking an early determination to ensure that a whole load of cases were not stacking up, awaiting a definitive judgment on the implications of the Cadder case.
It is accepted that the Supreme Court has a role to play. Lord McCluskey highlighted the fact that the judges are professional and competent to make judgments in the area. I want to focus on what practical difference certification would make. It would be difficult to conceive that human rights issues were not of sufficient importance to be considered by the Supreme Court, but there could be a filtering system, as there currently is. Why is that not sufficient? What is the real root of the issue?
As you correctly point out, human rights issues are hugely important and are fundamental to any criminal justice system. The Scottish courts—whether at first instance or at appeal court level—are well versed in the determination, interpretation and application of human rights. I will give you a couple of quick examples.
If England, Wales and Northern Ireland decided to do away with certification, would you go with that, or is certification so important that we should keep it?
I agree with Lord McCluskey’s point about ensuring consistency and parity for Scotland. Several members of the committee have alluded to the backlog of 150,000 cases that are awaiting decision or being dealt with in Strasbourg. Given that, the last thing that we would want to do is to flood the UK Supreme Court with applications. I completely agree, if you are proposing that there should be a filter system. In my view, the best filter system is a requirement for certification on a point of law of general public importance. That is the approach in England and Wales.
We are having a big argument over certification and its real value in its own right, but then we say that we will get rid of it if other jurisdictions decide to get rid of it. That just seems inconsistent. If certification is so important, why give it up so readily when somebody else gives it up? I do not understand that.
One point about the benefits of certification that is perhaps overlooked but to which Lord McCluskey alluded is that there are victims in all this. There is a principle of Scots law of finality and legal certainty. I do not want to name names of cases, but I have dealt with several high-profile prosecutions, at first instance and at appeal court level, in which it was difficult to explain the process to the next of kin. For example, when an appeal against conviction is refused and the next of kin ask me, “Is that it? Is that final?”, I have to tell them that, actually, it is not final because there is still the possibility, where there is a human rights point or a devolution issue, that an application can be made for leave to appeal to the Supreme Court. Then an application is made and it is refused by the appeal court. The next of kin then ask me if that is the end of the process, but I have to tell them that an application could still be made to the Supreme Court directly.
With respect, that does not answer my central point. Why all the fuss about certification if you would get rid of it so readily?
It depends what system you are looking at. Certification gives an element of certainty and finality. We can anticipate where we are going and whether—
So you would argue for it. You would not just give it up if England and Wales and Northern Ireland decided to do that.
I have taken account of what Lord McCluskey said. He is a judge of great importance and eminence. My personal opinion is that certification is a good filter and that it provides victims’ next of kin with an element of certainty and finality.
I call Stewart Maxwell to be followed by David McLetchie. We are still on certification, so please keep your questions on that.
Unlike Mr Rennie, I do not have a problem with understanding parity between the jurisdictions. I will move on to a slightly separate question on certification.
I do not agree with the Law Society or the Faculty of Advocates. In England, certification is required in order to go to the Supreme Court on human rights issues. The definition of a devolution issue in Wales and Northern Ireland is much narrower than the definition in Scotland. For example, the definition in Wales and Northern Ireland does not include acts of the Lord Advocate, so we are not comparing like with like.
So you agree with Lord McCluskey that the arguments that were put forward last week do not hold water and that the idea that the direct comparison should be with Northern Ireland and Wales is based on a false comparison.
I completely agree with Lord McCluskey on that.
Thank you. That is very clear.
I am trying to understand something. If the process of certification is necessary in order to support the position of the High Court of Justiciary as the apex court and to allow it to be the gatekeeper of what does and does not get to the Supreme Court on public importance grounds, why are proposed new sections 288ZB(4) and 288ZB(5) of the Criminal Procedure (Scotland) Act 1995 included in your draft provisions on compatibility questions? If the court is to be the final gatekeeper and determiner of these matters, and if it is so desirable to have finality, why have you included provisions in your proposals that would allow you and the Advocate General for Scotland, in effect, to subvert that?
I do not think that they subvert it. They complement it. The power in the Scotland Act 1998 that allows the Lord Advocate and the Advocate General to make referrals is a good power, which is exercised sparingly. I gave an example of where it was exercised for the benefit of Scots law in seeking early clarification. It complements the system. I do not think that it is inconsistent with the requirement for certification, as we exercise it sparingly.
It might well have been exercised sparingly, but we have heard for hours in the evidence so far that it is important that the High Court is the apex court and that it determines who gets to the Supreme Court and who does not. We have heard that all the way through, but here you are, on behalf of the Scottish Government, introducing clauses that, to use Mr McBride’s words, enable somebody else to bypass the decision of the court. I think that that is what he said.
The Advocate General and the Lord Advocate would refer a case direct to the Supreme Court only if it was a case of importance that raised real issues of law and application across the system itself.
You say that you would refer a case if you thought that it was of importance. However, we have been hearing all afternoon that the High Court of Justiciary is perfectly capable on its own—without the benefit of your intervention, or that of the Advocate General—of determining issues of general public importance. I ask again: why do you propose to circumvent that process?
I do not agree that the proposal is a circumvention. It would complement the process. The instances in which a direct referral has been made to the Supreme Court have allowed clarity and early determination of cases that apply across the spectrum of Scots criminal law. I think that the procedure has worked and that it should be retained.
Circumvent and complement sound a bit like Lord McCluskey’s dogs and cats and trying to define what is the case. I will leave that and pick up on something that you said in one of your answers to Mr Rennie.
I agree. Appeals should have time limits.
But you are a minister of the Government and I am not. I might be mistaken, but I have not heard anyone propose such time limits. Is that correct? We have passed at least four acts that relate to criminal justice in the 12 years during which I have been in Parliament and I have never heard of that. Why has it not been proposed?
Supreme Court matters are reserved and are not for the Scottish Parliament. However, to return to your point, there should be time limits and I hope that you agree that appeals or leave to appeal should be dealt with by the High Court and, indeed, the Supreme Court.
On that point, I presume that the Lord Advocate or the Advocate General would intervene long before the final court of appeal had made a determination or possibly even considered the case. I presume that the sons and grandsons of Cadder, or whatever, will be intervened upon long before they get anywhere near the High Court.
Absolutely. The case was not concluded, so we required a definitive judgment in advance of the conclusion of the case so that we knew where prosecutors lay in relation to what the law was in the matter. That applied to a raft of cases. That is why we decided at that stage to take the case out of the lengthy procedural route in Scotland and take it directly to the Supreme Court for an early decision of general application.
David McLetchie referred to certification being about gatekeeping, but I am talking about when we are well down the path, long before we can even see the gate. We would be able to see that there is an issue, but we would be nowhere near the High Court.
Yes.
Yes. I thought that that would be the case. I hope that I can come back in on another issue, convener.
We shall see.
Mr McLetchie asked about proposed new sections 288ZB(4) and 288ZB(5) of the 1995 act. However, may I turn the question round? If the power did not exist for the Lord Advocate to take cases, or to require the High Court to refer them for appeal to the Supreme Court, what would be the impact of that? You talked about the sons of Cadder and other such cases. If the power did not exist, what would the practical implications be?
We would need to see a case right through to its end before determining whether to go to the Supreme Court. We would prosecute that particular case without knowing the definitive decision on the particular point.
So, far from circumventing the apex of the Scottish criminal court system, the existence of this power would in fact allow you—when you spot a very obvious situation in which an important point of law is likely to need to be clarified—to establish very quickly what the answer from the Supreme Court would be, in order to avoid a long, drawn-out process that would end up at the Supreme Court anyway. It would benefit not only the prosecution service, but everyone else who was involved in such a case.
Absolutely—including police officers who are investigating very serious crimes. They do not know, outwith the police station, what the definitive position is. We have now got that position from the Supreme Court, so that we can issue guidance in the light of that earlier guidance to police officers and prosecutors.
So the power would be very helpful.
That is why we propose it.
We are running short of time and are in danger of being very rude to the Advocate General, which I would not like to do. Those who have not had much time in this session will have first bite at the Advocate General, if you will excuse the expression.
I want to raise an issue that Lord McCluskey discussed, which is the case of Horncastle in England and the fact that the Supreme Court came to its judgment because it felt that to do otherwise would contravene English law—basically, that it would mess up centuries of tradition in English law. What are your observations on the Supreme Court’s view of English law in that case and how Scots law is dealt with under this system?
It is important to make the point that there are implications from Horncastle, and the Strasbourg court is looking at a case called al-Khawaja, which has implications for Scotland. We are cheering on the UK Government’s intervention to retain the admission of hearsay evidence, for example from deceased persons who may have given a statement—prior to death, obviously.
Theoretically, why could Cadder not have been dealt with in the same way?
If there had been an application to Strasbourg on Cadder, it could have received a judgment. However, the decision was taken to go the Supreme Court route on the matter, so we had a decision from that court.
But the Supreme Court did not view Scots law in the way that it viewed English law in the Horncastle case. It did not say “Let’s look at the implications of this for Scots law” in the way that it did for English law in the Horncastle case.
There is a point in that, but the Lord Advocate must respect the decisions of the court. I respect every decision of the court. If I disagree with a decision of the court and I can do something about it, in the sense that I have the option of an appeal, I should exercise that option. However, I was the Solicitor General for Scotland for four years and I have been the Lord Advocate for nearly six months and I have never criticised the decision of a court, and I will not do so. I think that that is important for respect for the rule of law.
We have a clear view of the cases that you think should get to the Supreme Court. What powers should the Supreme Court have? I am not trying to raise issues such as the writ of habeas corpus, which are side issues in that regard.
I agree with Lord McCluskey that the jurisdiction of the Supreme Court should be in relation to the interpretation of convention rights. The disposal of cases should not be within its jurisdiction. In my view, cases should be referred back to the appeal court, which is the apex, in order for it to apply its judgment on the law to the facts of a particular case. It is not appropriate for the Supreme Court to have the powers of disposal that the appeal court has.
Thank you very much, Lord Advocate. I know that Mr McLetchie had particular points that he would like to be followed up, so we will put those to you in writing along with any others that other members have. I would appreciate it if you could respond in writing to those points.
Is that a response to the committee or directly to Mr McLetchie?
To the committee. The request will come from the committee and should go back to the committee.
I will be delighted to do that.
Thank you very much.
I welcome the right hon Lord Wallace, the Advocate General, and Paul Johnston, who is not honourable [Laughter.] I am sorry, Mr Johnston—I am sure that you are very honourable. Mr Johnston is solicitor to the Advocate General. I invite Lord Wallace to make a short opening statement.
I thank you for the invitation to appear before the committee. I was able to watch some of the earlier proceedings on a monitor, so I do not propose to rehearse the issues; I am sure that they will come out through questions.
Thank you very much for that. If I picked up your comments right, you are saying that you are listening carefully to all the discussion that is going on and are more than willing to move some distance from what was originally proposed in your bill, and to come to agreements with those who are advocating what should be right for Scotland under Scots law.
I think that that is a fair summation. We are considering the points. I am not saying that we agree with all of them; let us say that I am more persuaded about some than I am about others. On some, I will perhaps require considerable persuasion.
I thank you for that. I am sure that the committee will want to explore issues in the light of what you have just said. I ask for succinct questions and answers.
I wanted to ask about the public authorities issue, so my question has been pre-empted, to an extent. Would broadening the provision to cover all public authorities widen the ambit for ECHR challenges? What are the advantages and disadvantages of that approach?
I think that broadening would inevitably widen the ambit for this particular pathway. Clearly, at the present time, if there is a breach, a person can raise an issue under the Human Rights Act 1998, but the provision in the Scotland Bill would be a separate pathway. I heard Sheriff Stoddart give the example of a situation involving an interpreter, which would be the responsibility of the Scottish Court Service, and the convoluted way in which that might be dealt with as an act of the Lord Advocate or, conceivably, under clause 17 as it stands, concerning the advocate depute being right to ask a question when there is a possibility that interpretation is not being done. That would be pretty contrived, and is a good example of a situation in which the more appropriate body to deal with the matter would be the Scottish Court Service. Of course, the issue concerns acts or omissions that arise in the context of criminal cases.
In summarising your position, would it be correct to say that you are still assessing matters?
Yes. However, I think that a persuasive case has been made not only in Lord McCluskey’s report but in the evidence that I heard to the committee this afternoon.
A great deal of the discussion that we have had on the proposals has been on the certification procedure. As the Advocate General said, the debate has moved on quite far and we are debating some of the more narrow issues.
It is only right that I reflect on it, but it is a point on which I will need quite a lot of persuasion—[Interruption.]
There is some interference coming through on the sound system. Someone—Ms McAlpine—has forgotten to turn off their mobile phone.
I apologise, convener.
As I indicated earlier, I was aware that this issue was being mooted earlier in the year. That is when I put the original clauses out for consultation and specifically asked, in a second consultation, whether there should be a certification point. I thank you for your response to that consultation, Mr Baker. The Faculty of Advocates, Justice, the Scottish Human Rights Commission and, indeed, your good self considered that there should be no requirement for certification on a point of law of general public importance before an appeal went to the Supreme Court. The previous Lord Advocate and the Cabinet Secretary for Justice said that there should be. I weighed up the views and concluded, when we tabled the clause in the report stage in the House of Commons, that the case for certification was not made. I will give one or two of the reasons for that view.
The figures that you refer to speak for themselves. The counterpoint that would be put is that there is an issue of parity at stake. In England, Wales and Northern Ireland, a certification procedure would still be required, even for cases concerning convention rights.
I recognise the existence of that argument, but I am saying that parity goes only so far. It is not strict parity, because in England, Wales and Northern Ireland, we are talking about the whole of the criminal law—substantive criminal law, criminal evidence and criminal procedure. That is not what we are talking about here. We are talking about cases involving human rights law or those that involve issues arising out of compliance with European Union law, which are far more limited than is the case in the context of England, Wales and Northern Ireland, where we are dealing with the whole of the criminal law.
I asked the Lord Advocate a similar hypothetical question. I asked him whether, if a system whereby it was a requirement that leave to appeal to the Supreme Court had to be granted by the Scottish courts had been in place when the Cadder case was being adjudicated on, he would have referred that case on to the Supreme Court—
Do you mean if there had been certification?
Yes. I mean if a certification process had been in place when Cadder was being considered. The Lord Advocate said that, in the light of judgments by the Scottish courts, he would not have referred Cadder on to the Supreme Court. I think that that is an understandable but fairly risky approach. Given that, at the moment, his proposal is that he and you would retain the ability to require the High Court to refer the matter to the Supreme Court, would you have decided to do so in those circumstances? I imagine that it would be quite politically sensitive to do so.
That is probably understating it.
I would like to explore the practicalities of the provision and what it means.
It is an interesting proposal, which I was interested to see in the Lord Advocate’s draft amendments. I will perhaps return later to the current position on references.
I will follow what Richard Baker said. I struggle to understand the practical difference to the number of cases and so on that certification would make. I understand that human rights issues would probably be regarded as being of such importance that they would always pass the test, so I do not quite understand what certification would add to the process.
Perhaps that is why I have not yet been persuaded. I said that the test’s origin was in regulating the flow and ensuring that the House of Lords was not overwhelmed by criminal appeal cases. My point is that I am not persuaded that the Supreme Court has been overwhelmed with cases. In 2010, the number of cases—as opposed to applications to seek permission to appeal—that the Supreme Court heard was one, which was Cadder. If the number had been fewer, there would have been none. There is not a huge volume of cases going to the Supreme Court, so the reason why certification came into play in England and Wales does not necessarily pertain to appeals on the limited issues of convention compliance or European Union law compliance.
You began by saying that the whole process started because the judiciary told you that they were unhappy about how the Scotland Act 1998 was working, which has led to clause 17 of the Scotland Bill. A week ago, the committee received a letter from the Lord President, on the Scottish judiciary’s behalf, that supported in general Lord McCluskey’s recommendations and in particular his recommendation on certification. However, you say that you are not persuaded about certification. Why were you persuaded initially to take up the judiciary’s concerns, which you now dismiss?
It is unfair to say that I “dismiss” the judiciary’s concerns. I recognised that an issue existed. The outcome of the expert group that I set up, under Sir David Edward’s chairmanship, and the outcome of the review group under Lord McCluskey’s chairmanship, both indicated that there is an issue. It is clear that the situation is unsatisfactory. Various adjectives have been used to describe the position that was reached in the Scotland Act 1998. Sir David Edward’s report says that it really is not right that the Lord Advocate’s retained functions should somehow or other become devolution issues. It is clear that that is wholly anomalous, so an issue exists.
To quote Mr McBride, that could be interpreted as a lawyer’s answer.
I am a lawyer.
Lord McCluskey used the word “offensive”. As a Scot, he finds the lack of parity offensive.
I am not in the camp that says that there is a total lack of parity. No one—not the Scottish Government, not the UK Government, not Lord McCluskey—is suggesting that the UK Supreme Court should be the ultimate court of appeal for Scottish criminal cases, but it is the ultimate court of appeal for criminal cases in England, Wales and Northern Ireland. If there is a different system for getting through the gateway in England, Wales and Northern Ireland from that which exists in Scotland, it is not a question of lack of parity because we are not comparing like with like—we are going back to the dog called Felix the Cat.
With due respect, there seems to be a clear disagreement on that point. Lord McCluskey does not think that and the Lord President does not appear to believe that. You have said that you have discounted the views of the Lord Advocate and the previous Lord Advocate, but you seem to have taken Mr Baker’s views on board. I am interested to know why you have come down on that side and why you have dismissed the concerns of all those eminent legal minds.
You are misrepresenting what I have said. I have not said that I have “dismissed” them; I have given them a lot of thought. I have not yet finally concluded—I said that I would need a lot of persuasion. That is why I am meeting the Lord Chief Justice, for instance. If I had made up my mind, I would not be wasting his time and mine.
You seem to be doing just that—you seem to be playing a numbers game. We are talking about the Lord President speaking on behalf of the judiciary, but you seem to be dismissing that and citing all those other people. What he said counts for something. As Mr McBride said this morning, it is very unusual for the Lord President to write a letter such as that.
Of course it counts, and that is why I have given it proper consideration, including going to see the Lord Chief Justice of England and Wales. The judiciary would be the first to accept that Parliament makes the laws and the judiciary interprets and implements them. This is ultimately a matter for Parliament and parliamentarians must make the judgment. I will listen to what is said in the House of Lords; I imagine that some interesting debates will take place. There are people there who have lots of judicial experience, including Lord McCluskey, Lord Cullen and previous Lord Advocates who no longer hold judicial office, such as Lord Fraser—I do not know whether he will participate or not. There is a wealth of experience there and I am sure that they will bring their experience to bear on this issue. Nothing has been “dismissed” and I think it would be wrong to characterise what I am saying as being “dismissive”. It is far from it. I am trying to give this serious issue proper consideration.
Just—
I think that is enough, Ms McAlpine.
Just to pick up on that last point. Please?
Now, don’t be pathetic. [Laughter.] We must move on. I am aware of the time.
It is important—
No, Ms McAlpine. We have done enough on that point.
It is clear from what was said in Sir David Edward’s report and Lord McCluskey’s report that things were not right, although I am not going to get into a match about who can use the more lurid adjectives to describe it. I thought that Lord McCluskey—I hope that I am not misrepresenting him—pointed out that the Scotland Act 1998 came into force some time ahead of the Human Rights Act 1998 and, as I interpret and understand it, there was an effort to ensure that the Human Rights Act bit from the moment the Scottish Parliament and the Scottish Executive took power. It might have been seen as an interim arrangement until the Human Rights Act came into play, but it was interpreted in a way that continued beyond October 2000, when that act took effect. I suspect that that is what happened and—at the risk of being asked why I did not take the opportunity to do something about it—I remember that when I was Minister for Justice here it used to frustrate me a bit, too.
Excuse me if I am being simplistic, but why cannot we just fix it?
That is what we are trying to do, but in trying to fix it, a number of issues have arisen. When I asked Sir David Edward and his group to consider the issue, I did not know what solution they would come up with. They clearly took the view, which has been endorsed by Lord McCluskey’s group, that there is a legitimate role for the Supreme Court in the very narrow area of convention rights and European Union law, and that in removing such acts as devolution issues, we need to put in place a new route to the Supreme Court so that citizens’ human rights can be vindicated. The question of how we can best do that is what we are grappling with.
Is not it the case that there is reluctance among those who did the drafting to admit that they clearly got it wrong, and that the answer might well be simpler than all the commissions, expert groups and so on that we are running around with? Do we accept that we got it wrong?
I was on the Opposition benches, so it wisnae me, guv. If memory serves me, many of these provisions were made in the House of Lords; Lord McCluskey, who has left the room now, would probably remember that. It was a temporary solution and the point is that we are trying to sort it. I believe that the provisions in clause 17 will sort it and that the Lord Advocate’s proposals will, too. There are a number of detailed issues that we are trying to resolve.
I know that you were not in government at the time but, in your opinion, why were none of the issues foreseen when the Supreme Court was being set up and agreements were being made at Westminster?
There are two issues. First, some people take the view that the situation was not unintended. That is why I draw back from saying that it is a mistake. I have heard, although we cannot now confirm it, that Donald Dewar was anxious for the newly established Scottish Parliament to have a shining record on human rights and that we should not give any easy let-outs. I still remember the day when temporary judges had to be suspended. That is why I say that there might have been an element of deliberation, particularly in relation to the interim period.
I would hate to think that we were not trusted in relation to human rights in Scotland.
Well, clearly, in some cases we got it wrong. That is why the courts are there.
Before I move to Stewart Maxwell, Ms McAlpine has passed me a note about the extra question that she wanted to ask. It is worth asking, because you might well want to answer it.
I hope so.
In response to my earlier question, you said that parliamentarians make the law, not judges. However, we are talking about parliamentarians in the UK Parliament, some of whom are not elected if they are in the House of Lords, overruling the views of the Lord President, the Lord Advocate and quite possibly this Parliament. Surely you can see that there is a political difficulty there.
Obviously, weight is given to the views of the people to whom you refer. The matters are being given proper consideration. The Government does not have a majority in the House of Lords, so I cannot just decree what will happen. The issue is important, and it is important that parliamentarians—not just me—get a flavour of what is being said. However, in a proper constitutional analysis, it is Parliament that legislates and the judiciary that then implements and interprets the legislation.
Stewart Maxwell and Nigel Don have questions on powers of the Supreme Court.
It has been interesting to get your current thinking on the issues that we have been discussing today and last week. I am grateful for that. Will you give us your current position on the issue that is dealt with in paragraph 8 of the executive summary of Lord McCluskey’s report? Under the bill as drafted, the Supreme Court will have the powers of the court below. In other words, it will have the power to affirm, set aside or vary orders, remit issues for determination by that court and order a new trial or hearing. Lord McCluskey and the Lord Advocate take a different view. What is your thinking on the ability of the Supreme Court to make a ruling and then pass that back to the High Court for implementation?
The provision was included in the bill following a recommendation from Sir David Edward’s group. The position it embodies is the status quo: it exists not by means of the Scotland Act 1998 but under the rules of the Supreme Court, which is why it has been replicated.
That is very welcome. In the debate in Parliament last week, there was much cross-party agreement on the point that you have just outlined, if not on some other points. It is clear that there is a strong argument in favour of that particular position, and I am pleased to hear that you are considering the recommendations in a positive way.
On a related matter, the miscarriage of justice test was not in our original consideration, but was urged upon us so that the Supreme Court should be subject to the same test as is set out for the High Court of Justiciary. Those who were urging it are perhaps not so keen on it now. Again, I am more than willing to reconsider that provision, bearing in mind what Lord McCluskey’s report said about the test.
I was going to ask about that very point.
There is a lot to recommend in what Lord McCluskey says on that matter.
That is very helpful.
Good afternoon, Lord Wallace. I will go back to one of the subjects that the Lord Advocate talked about. I confess that I am not quite sure where the proposals currently stand, but I understand that they at least reduce the ability of the law officers to refer cases to the Supreme Court before they have gone through the full process.
Certainly. That is a perfectly fair question that I have wrestled with quite a lot. Although the bill proposes that the Lord Advocate or the Advocate General can seek a reference to the High Court of Justiciary, there is no provision in the bill as it is presently drafted for cases to go to the Supreme Court by bypassing the High Court of Justiciary as an appeal court. If the Advocate General or the Lord Advocate is by definition party to a case, there is provision for the case to go from the High Court of Justiciary sitting as an appeal court to the Supreme Court.
Right. I can understand why you took that decision, and I take your point about apparently being able to trump the High Court as well. I can see your problem there. However, is that really satisfactory? I find the argument that the High Court should be bypassed slightly strange. If we are dealing with sons of Cadder, or the next Cadder that comes along, is there a case for saying that it would be sensible to do that?
Of course, but I think that it is finely balanced. Perhaps the point that tipped me one way rather than the other was that the Supreme Court would at least have the benefit of the High Court’s decision. However, there are clearly benefits in short-circuiting the process—for example, it could reduce the time taken or resolve other cases that are waiting. There is an argument to be made in that regard, but I do not think that it is a matter of great principle. I would be interested to know what the committee concludes on such matters of judgment.
I would not disagree with you, but I must say that I do not think that the solution is entirely satisfactory.
Perhaps this is an opportunity to explain why I did not make provision for such cases.
Can you give us until about 5 o’clock?
Sorry, 6 o’clock. I was putting my clock back two hours.
Yes.
Good afternoon, Lord Wallace. I return to the question of certification, on which I will take a different angle. We have seen in written evidence from the likes of the Law Society of Scotland and the Faculty of Advocates that there is a need for consistency in the application of the ECHR and European law across every jurisdiction in the UK, for obvious reasons. However, there will no doubt continue to be a lack of parity between jurisdictions on the question of certification if clause 17 goes through as drafted.
I acknowledge that point. It is self-evident that no matter which way we go, there is an element of inconsistency. We are not talking about the whole Scottish criminal justice system, but there is a lack of parity there as well, although no one is advocating doing anything about that.
I am not entirely sure of that. We are comparing apples with apples when it comes to certification of EU compatibility—
EU compatibility?
I mean ECHR compatibility or compatibility with European law. If we are talking about leave to appeal in England and Wales and in Scotland, the situation is directly comparable. You will disallow that in Scotland while allowing the position in England and Wales to continue.
I am saying that you are not comparing like with like. In one case, you are dealing with the entire system of criminal justice and the criminal law, and in the other case you are dealing with constitutional or convention rights that arise in the context of a criminal case. That is an important distinction. The distinction that the dean of the Faculty of Advocates made last week between a criminal jurisdiction and a constitutional jurisdiction is a very important one.
Thank you. I will now exercise convener’s privilege and keep you until 5 minutes past 6.
I have one other point that I want to make, so if you do not ask me the question I will answer it—[Laughter.]
Do you want to answer the question before I ask it?
No. Ask your question—you might allow me to answer the one that I want to answer.
The privilege that I will take is to spread the question out a wee bit beyond the issue that we have been talking about to the Scotland Bill in general.
Before you do that, can I deal with—
This is like a sketch from “The Two Ronnies”.
My comment relates to a point that Mr McLetchie raised with previous witnesses.
We have already agreed to write to the Lord Advocate on that point. We will also write to you to cover some of the issues that have been raised, so perhaps it can be included in that letter. We can get your response and we will then have both arguments.
I read your comments.
Did you? In that case, you will know why I am not happy.
I do not think that you read all that I said.
I did. The basic point was that the assumption that was taken from your comments was that this Parliament had agreed to the legislative consent motion on the Scotland Bill prior to dissolution and the election when, in fact, its agreement was heavily caveated, and we have come back to it. The Secretary of State for Scotland accepted that. Do you accept the secretary of state’s position? He has stated that Westminster
I agree with the words that the Secretary of State for Scotland used on that occasion. It is perhaps also important to put the issue into context. On the vote that was carried in the Scottish Parliament back in March before the election, substantial parts of the bill were not caveated. In the second reading debate in the House of Lords, I said that
I have read that, too.
But it is important to put it on the record. I stated:
Bless Lord Sewel. I would bless you, too, if you would agree to joint commencement for some of the bill.
It is a package.
I thank the right honourable Lord Wallace and the extremely honourable Paul Johnston. I suspend the meeting for a few minutes.
I reconvene the meeting and welcome Alan Trench, who will talk about the Scotland Bill in general and constitutional issues.
Thank you, convener. It is a great pleasure to appear before the Scotland Bill Committee once again. Mr McLetchie was a member of the previous committee, which I appeared before in January.
Thank you very much.
The fundamental issue is how the proposed reduction in the block grant is calculated. That seems to me to be an outstandingly important issue, and I have drawn attention to it in my latest memorandum, particularly in paragraph 7.
In a previous committee meeting, it was said that we are being asked to sign up to something of which nobody really understands the basis or on-going operation.
Indeed.
Thank you for coming to the meeting, Mr Trench. Given that the committee is new, we are probably going over some of the same ground that you have gone over before. Forgive us for that.
Yes.
Should Scotland raise that level of spending, or is the figure fairly arbitrary?
I do not know whether I would want to use the word “arbitrary”. There is variation from system to system.
I accept that it is not an absolute figure.
It cannot be an absolute figure. I do not think that—as I understand that Reform Scotland has suggested in evidence to the committee—the figure needs to be 100 per cent of devolved spending. That would be without parallel.
When the committee met some representatives from the Government of Western Australia, I got the impression that, there, the way in which the taxes are split between the centre and the periphery is quite messy, but there seemed to be more of a negotiation process between the subsidiary and central Governments. Is that your understanding?
There certainly would be that negotiation, but the key thing to remember, in an Australian context, is the role of the Commonwealth Grants Commission. It is a quango that advises the federal treasurer about the allocation of resources, and it uses a complex set of mechanisms to do that. The effect of the way in which it operates is largely to wash out the degree of fiscal autonomy that the Australian states have. It equalises to an extremely effective degree.
You are concerned about the block grant and believe that we need a bit more detail. Is that because the relationship between what we would raise in taxes, whatever that might be, and its effect on the block grant is not clear at the moment?
Yes. That is fundamental to my concern.
It has been suggested that the main thing is to get the framework in place and that the details of the block grant and how they relate to each other can then be worked out in practice. Do you think that we or the UK Parliament face a risk if we do not get a bit more detail before the legislative consent motion?
Yes, I do. This is not a technical detail but a fundamental issue. There will be technical aspects to which the idea of working it out later can apply but the basic principle of how the grant is to be calculated is not one of them.
The next thing that you talked about in your memorandum was the way in which different taxes are useful or not. I find your analysis of the different taxes to be succinct and useful. If I am reading it correctly, you favour income tax, which is obviously the biggest one, and you seem to be fairly positive about it being devolved. I do not think that you say that all taxation should be devolved, but I wonder whether that would be the logical extension because you have reservations about some of the other taxes.
Indeed. I ought to emphasise that my remarks about taxation come out of on-going work to develop what I have called a more or less federal model for funding devolution in the UK. That is why I am looking at comparisons with federal systems with due caution about the differences between those systems and the UK.
That is true, unless they are put together at some stage.
Indeed. There is a tentative proposal to do that, but it is not likely to go as far as you might think because of something that is buried in the structure of how public expenditure and revenue works, which is the differential nature of the national insurance fund from the consolidated fund.
In people’s thinking, income tax and national insurance are separate things, although in practice they are very similar.
It is important to say that that refers to employees and the self-employed because there is also employers’ national insurance, which is a payroll tax.
In your feeling or in your overseas experience, do people understand the idea of splitting a tax? Does it lead to confusion? I have asked previous witnesses whether having some income tax in Scotland and some at the UK level means that we just end up blaming each other for income tax. Is it tidier to devolve it all? Do people understand it better?
It depends how we levy income tax. We can look around the world: the United States levies both state and federal income taxes, with the federal tax by far the larger. As a result of that, taxpayers in the US have to fill out two tax returns—one for federal Government and one for the state. It is thankfully an easier job to fill out the state one once you have filled out the federal one, because the federal tax code is much more elaborate than the state tax codes—the state tax codes tend to be simplified versions of the federal one. I had to fill out the forms when I lived in the States for a couple of years. Everyone seems to do it. It is a chore that you do and, if you are as disorganised as I am, you do it in the second week of April, because tax day is 15 April.
Does everyone in the States who is earning fill out a tax return?
Yes. That makes quite a difference to how collection systems operate.
May I interrupt? I wish that you would look round occasionally, John. [Laughter.]
You are raising two issues. One is the relative arbitrariness of picking 10p, which is more or less half for the bulk of taxpayers. One could see that there is a certain rough and ready logic in partitioning the tax by saying that half goes to Scotland and half to the UK, and there were certainly many suspicions at the time, which have never been documented that the figure was largely arbitrary. I am afraid that I was not aware of Sir Kenneth’s evidence, but I am intrigued that he is now able to be clear about that.
We are actually going to hear from Professor Richard Bird—although I am not sure whether he is a professor.
He is indeed—a very eminent one.
Oh dear—that is on the record. I shall be extra nice to him. We are talking to him from the University of Toronto by videoconference next week, which will be extremely interesting.
Indeed. From what I know about Canadian practice—I am a little out of date so I need to double-check, but I understand from a contact in Ottawa that this still remains the case—the federal Government in Ottawa collects federal taxes in all parts of Canada, including federal income tax and other personal taxes, but it also collects provincial taxes on behalf of the Governments of all the provinces except for Quebec. Quebec insists on separate collection, though its definitions of what income is and of exemptions and reliefs largely follow those of the federal Government.
That is certainly something that we can query and probe a bit further next week.
I want to ask for your opinion, Mr Trench. You talked about the problems with the block grant and how, in order to ascertain whether the proposal is a good thing or a bad thing and how it would be calculated, we have to know the detail. What is your opinion on the restriction on the ability of the Parliament—if the bill goes through unamended—in relation to the 10p rate and the fact that there is no way that we can take account of, for example, changes in allowances by the UK Government?
That seems to me to be a problematic aspect, which is why I talked about the need for an enhanced set of intergovernmental mechanisms. If Scotland is to have a relatively limited set of devolved tax powers that are attached to UK tax powers, it is clear that the UK Government will make its decisions about the use of its powers primarily for reasons that relate to England—because England is 85 per cent of the whole—and that the Scottish concerns are likely to figure to a much lesser degree.
How does that flow into some of the problems that we have had explained to us before about Treasury forecasting? As you rightly say, a lot of the decisions are taken very close to the wire—sometimes on the day of the budget announcement—and yet we are expected to live with what is generally seen as a pretty poor set of Treasury forecasts at the best of times. That forecasting will have a great impact on our income and yet decisions are taken very close to the wire in the middle of the process.
Indeed. The UK Government has not given the implications enough thought. It has been clear that the UK Government treats devolution as an event and not a process: devolution happened in 1998 and was then substantially forgotten. Devolved concerns rank only to a limited extent, if at all, in a lot of the UK Government’s thinking.
Thank you for your memorandums. You have outlined your views clearly—you think that the bill is flawed. The last paragraph in your memorandum to our predecessor committee says:
I think so, on the basis that the proposals are a step down a road rather than the end of a journey. One problem is that they have been treated as though they are the end of a journey rather than the first of several steps down a path. In some ways, the first step down a path is the most difficult one.
I will ask about what was clause 23 of the bill, which I understand has become clause 27 since the House of Lords got its hands on the bill. You have made an important point about that provision, which enables UK ministers to make orders to implement international obligations that relate to devolved functions. That was never part of the Calman commission’s recommendations but was added by Whitehall when the bill was drafted. Why are you so concerned about that clause?
I discussed that in some detail in my memorandum to your predecessor committee. Subsequent to that, I had the advantage of hearing an explanation given by the secretary of state when he gave evidence on the bill to the Scottish Affairs Committee at Westminster. I then wrote a post on my blog, “Devolution Matters”, which sets out my objections in some detail. I put up that post on 18 February 2011, if anyone is interested in following it up.
The way that you have described the clause suggests that it could lead to the dismantling of much of the progress that we have made with devolution so far.
I would not necessarily go that far. It gives the UK Government the ability to act very selectively when it dislikes a specific thing that has been done by the devolved Government, but a number of other provisions in the bill also do that. The UK Government is able to allow the devolved Government to take away the chore of running health services in Scotland, but it is able to act selectively to deal with a specific matter that perturbs it. I think that that is incompatible with what we are told devolution is about, which is that Scotland should become responsible for a wide range of devolved matters.
Just to be clear, are you saying that the clause could allow the UK Government to interfere in health and education, which were administratively devolved, so to speak, even before devolution?
It would depend. In this particular context, if the UK Government were able to identify an international obligation that in its view had not been adequately satisfied by the Scottish Government, the clause would allow the UK Government to take action in relation to whatever that related to, whether health, education or the status of the staff employed in the European Union Military Staff and the European Organisation for Astronomical Research in the Southern Hemisphere.
On that note, I call Mr McLetchie.
I will not pursue that line of questioning.
To start with perhaps the least important point, it is a well-established principle of British constitutional law, but perhaps particularly of English constitutional law, that taxes must be levied explicitly by Parliament. I would hope that the Scots would regard that as a valuable part of a shared constitutional inheritance. One of the first cases that people learn about is that of ship money, which was a tax that Charles II arbitrarily levied to raise money to finance the navy to fight the French.
We have heard evidence, as did our predecessor committee, that the power to set the rate might be devolved to the Northern Ireland Assembly. Professor Holtham, whom you mentioned, raised that issue in the context of funding for the Welsh Government, and our predecessor committee took evidence from him. Given that the proposals are swirling around in relation to the devolved Administrations in Scotland, Northern Ireland and Wales, and given what you said about the constitutional position and your reference to ship money and so on, would it be more appropriate to have a bill to deal with the devolution of corporation tax—if such a thing were to be a matter of policy—or a corporation tax reform bill or something of that nature? That would allow consideration of the issue in the United Kingdom context and in relation to Scotland, Wales and Northern Ireland, rather than as an adjunct to the Scotland Bill.
Some sort of separate legislative vehicle would be a much better mechanism if we were to go about doing that. That would address the issues in a much wider context.
Convener, can I ask a question about excise duty?
Of course you can, but I am aware that time is moving on.
I will try to be brief.
John Mason wants to ask about borrowing, so I ask David McLetchie to be brief, too.
You raise issues about the proposal to devolve excise duty, which has morphed into a much more limited proposal that there should be an assignation of estimated revenues from excise duties on drink that is consumed in Scotland. What do you think about that assigned revenues proposal as regards excise duty?
As I said in my memorandum, I have become more of a fan of assigned revenues in relation to value added tax than I thought I used to be and certainly than the Calman commission and the Holtham commission were. Both commissions considered the idea of assignment of revenues with a degree of care, although they dismissed it quickly for reasons relating to the block grant and the system of consequentials.
So, basically, if I understand your line of argument, you think that excise duty is unsuitable because of the way in which it is levied, but you favour the view that there might be some kind of sales tax that could have a similar impact on consumption.
Indeed. It is easy to see how the use of excise duties—one of the effects of which is to inflate the cost of alcohol in the shops beyond the combined production, mark-up and distribution costs—becomes a more favourable approach, but although assigning a share of excise duties would marginally enhance Scotland’s own-source revenues, it would not give it the policy lever that is also being sought to deal with an understandable social policy concern.
I know that John Mason has a strong desire to ask about borrowing powers.
I was going through a list of things that I wanted to ask about. I will ask questions about just two more issues, if I may: borrowing powers and one other. I had intended to ask about HMRC, as well, but we have had some comment on that already.
Could you combine the two areas that you want to ask about in a commentary?
Okay. I will put everything into one sentence so that it is only one question.
The block grant is becoming more clearly problematic, because it is driven by the system of consequentials, whereby changes in shares of spending reflect changes in allocation in England for so-called comparable functions. That is fine when the structure of public policy is broadly the same across the various parts of the UK and, in particular, when money is rolling into the Exchequer and it becomes a mechanism simply for distributing extra resources, but neither of those is the case any more. We have Governments in Scotland, Westminster and Wales that have very different political compositions and different ideas about what public policy should be. That starts to create some quite significant difficulties when it comes to making choices, particularly when the revenues that are allocated are not increasing very greatly or are being reduced. That is one reason why I am keen to see a significantly greater reliance on own sources of revenue rather than the block grant.
Does that mean that they borrowed more than they could prudentially afford?
Absolutely.
Whereas no council in Scotland has borrowed more under these powers. What would happen if Scotland was bound by the same limits?
It depends what the rule is and who enforces it, but you will start to get into that sort of a system. The Australians dealt with this problem in the 1930s by setting up something called the Loans Council, which served as a major focus for intergovernmental disagreements for 10 or 12 years and then vanished from the scene. It still notionally exists and I suppose that it has a chairman who does nothing, but I do not believe that it is active at all. That is largely because the system has found another way of dealing with state-level borrowing.
Okay. Thank you.
May I come back to the international issues that Joan McAlpine was discussing, which, as you told us, you also discussed in your blog? At the end of your memorandum, you say very strongly that
In my view, it is a bad clause and it goes far beyond remedying the abuse with which it seeks to deal. In those circumstances, I do not think that it is an appropriate clause for the UK Government to have inserted or insisted on.
You will also have heard the right hon the Lord Wallace—to give him his proper title—say that the bill is a package, however.
Well, yes, and in that case it is a question for the committee to decide whether the mischief that that clause might cause outweighs the rest, and whether the bill actually is a package, given some of the statements that have been made by other ministers that seem to suggest that they were willing to consider amending specific provisions. Michael Moore has certainly suggested that on a number of occasions of which I am aware, although I cannot recall whether he said it directly in his evidence to you. I am therefore slightly puzzled about whether the bill is a package or not. If it is, why is it a package when the Calman commission’s recommendations were not? The bill differs significantly from the recommendations that were made by the commission. It has added a number of provisions and subtracted certain things. We know about the provisions on air passenger duty and the aggregates levy, as well as the proposal for the assignment of a share of revenues from savings and investment income. Why does the bill become a package in the form it acquired on its entry into the House of Lords? I am unclear about that.
Thank you for your attendance, which is much appreciated.
You are most welcome—it has been a pleasure.
We will now move into private session. May I ask anybody who is not on the committee to skedaddle?
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