Meeting of the Parliament

Meeting date: Wednesday, October 27, 2010

Official Report 933KB pdf

---

Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill (Emergency Bill)

The next item of business is consideration of motion S3M-7266, in the name of Kenny MacAskill, to treat the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill as an emergency bill.

14:05

I propose that the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill be considered under the emergency legislation procedure. If Parliament allows the bill to be dealt with under that procedure, I will explain the background in more detail in the stage 1 debate. For now, I will outline why the bill should be handled under that exceptional procedure.

The need for the bill stems from the judgment of the United Kingdom Supreme Court in the case of Cadder v HMA, issued yesterday, which decided that the practice of police interviewing detained persons in a police station without allowing them access to legal advice is contrary to the European convention on human rights and therefore Scots law. That overturned decades of Scots law and overruled the decision of the highest criminal court of appeal here in Scotland just last year. We did not choose this situation, but we are required to address it.

There are three main reasons why I believe the legislation needs to be passed under emergency procedure. First, the judgment affects current practice in detaining suspects. That is at the heart of our justice system, with tens of thousands of detentions taking place every year. The ruling of the UK Supreme Court, notwithstanding the decision of our High Court of criminal appeal in 2009, means that, as we stand here, our statute is incompatible with the ECHR in a key part of the justice system. In my view, we must act immediately to correct that. Although the Lord Advocate’s guidance provides some protection in individual cases, it is a poor substitute for a specific and identifiable right in statute.

The cabinet secretary seeks to justify emergency legislation going through in one day with no scrutiny other than what we will have today. Will he make it clear exactly what difference there would be in leaving the Lord Advocate’s guidelines in place until we have proper scrutiny of legislation, rather than concluding matters today? Would he have any additional cases to worry about that he does not have in the first place?

I think that we might do. Clearly, the police operate under section 14 of the Criminal Procedure (Scotland) Act 1995. As the member knows, we are not entitled in Scotland to have legislation that is contrary to the ECHR. Accordingly, there is a possibility of challenges that could strike down the basis on which the police operate. We are in a situation in which 1,000 or so people are detained every week. Without new legislation, there is the danger that matters could be struck down and that we could be left in a position in which we have no right of detention, so I believe that it is essential.

I am sorry to press the point, but it is important. The Lord Advocate’s guidelines operate at the moment. Is the cabinet secretary suggesting that the guidelines are not being followed by police officers? If he is not suggesting that, what is the problem?

Of course the Lord Advocate’s guidelines are followed: the police accept the instructions and act as directed by our senior law officer. The law that stands in Scotland is section 14 of the Criminal Procedure (Scotland) Act 1995. The police are correctly taking actions on the basis of the wise and sound counsel given by the Lord Advocate, but at present we face the possibility of detention being struck down. In fact, we could find ourselves in the position of not having the power to detain, full stop. That would be a retrograde step that would damage the rights of those who are the victims of crime, never mind the safety of our communities.

I want to develop Robert Brown’s point. Is the cabinet secretary confident that the interim practice that has been in place while the court case has been going on is sufficient to ensure that no further challenges could be brought on the same terms? If the current arrangements are sufficient to have prevented further challenges, they are sufficient to prevent them for even just a few weeks longer, which would give us time for at least some cursory scrutiny.

There are two matters to consider. First, the guidelines were introduced on an assumption of what the decision that became available only at 9.45 yesterday may or may not have been. They were wise actions taken by the Lord Advocate to protect the nature of convictions in cases that are outstanding. They are guidelines only: they are not the statute that currently stands, which is why we are required to act.

Secondly, are we certain that we will not be subject to challenges? If only that were the case. Because of the lack of protection that this Government and Parliament have, we face challenges on each and every thing. It is feasible to envisage a situation in which the bill, if it is passed, will be the subject of challenge yet again by a small industry out there that seems to think that it can take public funds, in many instances, and go to the Supreme Court, bypassing the High Court of appeal in Scotland. There is a clear necessity to take action.

The creation of a right of access to advice from a solicitor cannot stand on its own. If we are to create such a right, we must also act immediately to put in place the means to give effect to that right and to maintain an effective system of police investigation. I therefore believe that it is necessary to act immediately to revise the maximum period of detention and to provide powers to adjust legal aid to make that work.

Finally, the bill contains provisions to ensure that we give effect to the court’s intention that closed cases are not reopened.

Will the minister take an intervention?

No, I am sorry but we do not have time.

Certainty and finality are important principles. It is vital that we move immediately to apply time limits to certain types of summary appeals and ensure that the Scottish Criminal Cases Review Commission takes account of those principles. Passing the bill today will show that the Parliament is committed to maintaining the ECHR compatibility of Scots law; that we intend to give practical effect to that right; and that we want to maintain an effective, balanced system of police investigation. It will also signal our intention to bring certainty to concluded cases as quickly as possible, which is very much in line with the spirit of the judgment.

The bill is longer and more complex than emergency legislation that has been passed previously in the Parliament; however, for the reasons above, I believe that the bill must be seen as a package, all the elements of which are critical to maintaining an effective system of justice in Scotland and must be included.

For those members who are conscious of the adage of legislating at haste and repenting at leisure, I offer the reassurance that, although we are required to act as a result of a UK Supreme Court decision, all these matters will be subject to further consideration in Lord Carloway’s review of law and practice, which will start very soon.

I move,

That the Parliament agrees that the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill be treated as an Emergency Bill.

Motion agreed to.