Meeting of the Parliament

Meeting date: Thursday, October 27, 2011

Official Report 1011KB pdf

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Scots Criminal Law (Integrity)

The next item of business is a debate on motion S4M-01133, in the name of Kenny MacAskill, on ensuring the integrity of Scots criminal law.

14:59

Scotland has a unique legal tradition that is many centuries old and proudly independent. The existence of distinctive Scots law predates the treaty of union by centuries. The old Scots Parliament made laws for Scotland and those laws were applied in Scotland’s courts long before 1707.

The distinctiveness of Scots law has been at the heart of our national identity and civic society, and we have a duty to preserve and uphold it. I know that that view is widely held. It is critically important that we maintain the identity and the substance of Scots law. They are the foundations on which our legal institutions stand and are part of our civic democracy. That identity and that independence were constitutionally guaranteed by the treaty of union in 1707, and they have been cherished and preserved for centuries since then.

With that in mind, I am delighted to welcome the report that has been prepared by the independent review group led by Lord McCluskey. Once again, I welcome him and his colleague Sheriff Charles Stoddart to the chamber, and I want to pay tribute to the individual members of the group.

Lord John McCluskey is a central figure in the history of Scottish constitutional change. He was Solicitor General for Scotland when the first devolution proposals came before the Westminster Parliament in the 1970s, and he presided as a High Court judge for 16 years over some of the most significant cases in Scottish legal history.

Sir Gerald Gordon was a sheriff for nearly 25 years and a temporary judge at the High Court until June 2004. He was professor of Scots law and head of the department of criminal law and criminology at the University of Edinburgh. He has been an advocate and procurator fiscal depute, and he was a member of the Scottish Criminal Cases Review Commission from its inception in 1999.

Sheriff Charles Stoddart was the first director of judicial studies for the Judicial Studies Committee for Scotland and a well-respected sheriff.

Professor Neil Walker is regius professor of public law and the law of nature and nations at the University of Edinburgh, and an internationally renowned expert on constitutional theory.

The group’s report is objective, measured and informed by an unparalleled level of expertise. The advice provides a sound and sensible basis for progressing matters. The analysis that the group has produced is considered. It recognises the need for change and puts forward measured and achievable suggestions on how we can bring about that change.

In taking on the task, the group was clear that the review would operate within the current constitutional situation. That is not the constitutional situation that the First Minister and I seek, but it is the one that we find ourselves with and require to address. The Scottish Government’s position on constitutional change is well known. It goes without saying that we are preparing Scotland to be a modern, independent nation. However, this debate is not about constitutional change; rather, it is about ensuring that the integrity of the Scottish legal system is preserved. People must take any threat to Scotland’s historic legal tradition seriously, whether they support independence, devolution or the status quo.

Until 1999, the High Court of Justiciary sat in its rightful place at the apex of the Scottish criminal justice system. I accept that devolution was not intended to change that, but the jurisdiction of the United Kingdom Supreme Court has developed in the intervening years, and that has had effects in ways that were not foreseen when I was being lectured by Sheriff Stoddart and Sir Gerald Gordon.

I simply seek to suggest ways in which the situation can be remedied, whereby the High Court has the final say on Scots criminal matters and the UK Supreme Court assumes a role as a proper constitutional court and is certainly not a further court of general appeal. That is a perfectly normal state of affairs in any modern European democracy where there is a clear distinction between the proper role of the criminal courts and the function of a specialist court that is tasked specifically with the role of interpreting and defining convention rights. The courts should not compete with but complement each other.

The review group made a number of arguments. First, the UK Supreme Court should be limited in jurisdiction, ruling only on the application of convention rights and not on any remedy offered in recompense for breach of those rights. Secondly, an appeal to the UK Supreme Court should be competent to proceed only when a point of general public importance is judged to be raised. Thirdly, provisions for appealing to the UK Supreme Court should not be limited to acts of the Lord Advocate but should be extended to all acts of public bodies, including the Scottish ministers.

On the first point, we agree that the UK Supreme Court should not rule on remedy. Under the current arrangements, we would be prepared to accept that it has a role in interpreting the European convention on human rights and handing down its interpretation. However, actively to suggest remedies for breaches is to take a step too far. The role of the court should rest with giving authoritative rulings on compliance.

We also agree on the second point. It is simply not acceptable that the High Court of Justiciary in Scotland does not have the same powers as its counterparts in England and Wales when it comes to certifying a case for consideration by the UK Supreme Court. That is a strange anomaly, which must be remedied.

We agree on the third point, too. The Human Rights Act 1998 already captures the acts of public bodies, and the recognition of that is simply the putting into effect of what currently happens, through the office of the Lord Advocate. It would make sense and be more transparent to recognise the situation in relation to criminal proceedings, rather than trying to fit such acts into the term

“an act of the Lord Advocate”.

It is far better that the system should be clear, particularly to the public, who do not have the luxury of immersing themselves in the finer detail of criminal procedure.

Does the cabinet secretary think that the public might prefer him not to go on in great detail about the issue but instead address the key issue for the justice system, which is the clogging up of cases in the prosecution service and the undermining of people’s confidence in the system?

I would have hoped that, on a matter of huge constitutional importance that is fundamental to the integrity of Scots criminal law, the member’s intervention would have added to matters rather than detracting from the dignity and majesty of these proceedings.

There are pressures in the courts system. We will debate them, and doubtless they will be discussed and argued about in the Parliament. However, Ms Lamont offered no perspective on the matter that we are debating. Does she think that this debate is irrelevant? Is it not worthy of her consideration? Cannot she ask a question that relates to the fundamental matter in hand, which is the integrity of Scottish criminal law and how we deal with the UK Supreme Court? I do not seek to diminish the challenges that the Crown Office and Procurator Fiscal Service faces, but I would have thought that the member would have made a contribution that was worthy of a debate in which we are honoured by the attendance of Lord McCluskey and Sheriff Charles Stoddart.

The review group’s recommendation remedies the situation that was introduced by the Scotland Act 1998, which Lord McCluskey described recently in the House of Lords as “constitutionally inept”.

There are other points with which we agree. It seems sensible to allow the UK Supreme Court to reformulate the questions, albeit within properly defined parameters. We would be relaxed about the retention of the powers of the Lord Advocate and the Advocate General to refer cases if they felt that there was a point of general public importance. I note that there are others who agree with the McCluskey group recommendations, including the Lord President, who has written to the Scotland Bill Committee indicating that Scotland’s most senior judges are in agreement with the report, particularly on the point of certification. In an important debate about matters involving the Lord Advocate and the Advocate General, which includes comments from the Lord President, it would be worthy of members to contribute constructively to achieve the necessary outcome of preserving the integrity of the judicial system in Scotland.

I say to those who argue against certification simply that Scotland has an independent legal system. As I said at the outset, it was preserved by the treaty of union and predates the treaty of union. It has been a fundamental part of the democratic and civic structures in our society that have grown up in parallel with, but distinct from, those south of the border and we imperil it at our own danger. We must trust the High Court of Justiciary to consider the merits of cases and rule accordingly, just as the courts of appeal in the other constituent parts of the UK are trusted. In that way, both the High Court and the UK Supreme Court will be able to fulfil their respective functions.

In seeking to take concrete actions to address those issues, I will write today to the Scotland Bill Committee of this Parliament in advance of its evidence session on Tuesday. I will also write to the Advocate General and the Secretary of State for Scotland with a copy of draft illustrative provisions that are designed to implement the McCluskey group’s recommendations. I look forward to holding further discussions with the Advocate General and others as we seek to agree on a solution that is in the best interests of Scotland.

In the meantime, I urge the Parliament to endorse the conclusions of the review group’s report and call on others to recognise that they offer the best path to safeguarding the integrity of our historic independent legal system. This is not necessarily the position that the Government would take in an independent Scotland. However, while we remain in a devolved Scotland, it is fundamental that we preserve the integrity of that which was meant to be protected, and was specified as being protected, in the treaty of union. For that reason, this is an important debate and should be treated as such by all members. It was because of the importance of the subject that Lord McCluskey and his colleagues—given their eminence and seniority in law in Scotland—were asked to consider it. Now that they have produced a report that is supported not only by me—as might be expected, putting my faith in the great and the good—but by the Lord President, the most senior judge in Scotland, speaking not only personally but on behalf of the senior judges of Scotland, it is important that the Scottish Parliament listens and acts.

I move,

That the Parliament welcomes the conclusions of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of Justiciary and the Supreme Court in criminal cases; welcomes the review group’s comments about the historical independence of the Scottish legal system and its conclusion that this position should be maintained by restoring the High Court to its rightful place at the apex of that system; further welcomes the review group’s suggestion of a certification procedure granted by the High Court of Justiciary for criminal cases; notes the review group’s view that the UK Supreme Court should have a limited jurisdiction, ruling solely on the point of law relating to convention rights arising in criminal cases, and calls on the UK Government to work with the Scottish Government to deliver a solution through the Scotland Bill that reflects the recommendations of the review and preserves the integrity of Scots criminal law.

15:13

I welcome the opportunity to take part in this afternoon’s debate. I thank Lord McCluskey and his colleagues for the work that they have done in producing not only the final report but the interim report that we debated in June.

Mr MacAskill started with a history lesson. I will start with a more recent history lesson to put the debate in context. It is important to reflect on the intemperate contributions that the First Minister and the cabinet secretary made to the debate back in May. Following the Supreme Court’s judgment in the Fraser case, Mr Salmond attacked the England-based judges for the decision. Mr MacAskill told us that such judgments implied that the judges acquired their knowledge of Scots law on a visit to the Edinburgh festival. He also, shockingly, threatened to withdraw funding from the Supreme Court. The Law Society of Scotland and the Faculty of Advocates united to condemn that move. Those comments were unacceptable at the time and did nothing to set the tone that Mr MacAskill has strenuously encouraged Parliament to adopt this afternoon. It seemed to me almost as if Mr MacAskill and the First Minister were telling us that all we needed to get the correct decisions were some Scottish judges in tartan scarves as opposed to English judges wrapped in the St George’s cross. Some members are shaking their heads, but that was the tone of the debate.

I note the report and will move on to discuss the issues in more measured terms. I welcome the fact that the report reinforces the UK Supreme Court’s role. I point out that that is at odds with the view that the Scottish National Party Government expressed back in May, but it is the correct view to take and is entirely logical given the situation that we are in.

Mr MacAskill stressed that we have an independent legal system. However, we are not an independent country. We reside within the UK, and the UK is the signatory to the European convention on human rights. Therefore, it is important that we have consistency throughout the UK and the Supreme Court should be the court of appeal in human rights cases. That recommendation in the report is to be welcomed, particularly when we contrast it with some of the suggestions in the debate back in May, such as having a Scottish supreme court or referring decisions to Strasbourg.

In its submission to the Scotland Bill Committee, the Faculty of Advocates pointed out that the Supreme Court has been used on only very few occasions. Between October 2009 and March 2011, there were 18 requests for the Supreme Court to consider cases and only two of them were taken up. Members should contrast that with Strasbourg, where 150,000 cases are taking up to three and a half years to be heard. We should think of the cost and uncertainty that would arise if we went down that route, as some members suggested earlier in the year.

Three areas in the report require concentration and further consideration. The proposal in the Scotland Bill on acts of the Lord Advocate, which has been discussed in the expert group convened by Lord Wallace and in Lord McCluskey’s group, is a substantive legislative proposal that requires consideration. The expert group, supported by Lord McCluskey’s group, criticised the original constitutional arrangements in relation to the Lord Advocate’s retained functions. It pointed out that that has resulted in practical problems and delays. The proposal has been made to take out the Lord Advocate’s retained functions.

It should be noted that the Law Society has opposed that. It has some concerns on the issue, particularly on how convictions would be treated if convention rights had been breached. However, I note that, in its evidence to the Scotland Bill Committee, the Faculty of Advocates—which was originally opposed to taking the acts of the Lord Advocate out of the arrangements—says that it is hopeful that a solution can be found. It is important that the relevant parties discuss the issues to try to find a solution that is agreeable to all.

Mr MacAskill focused on the proposal that the High Court should have to grant a certificate of public interest in a case before the Supreme Court could hear it. He argued that that would bring Scotland into line with other parts of the UK. That is one side of the argument, but other issues must be considered. If that approach was to be consistent with that in other parts of the UK, it could open up the ability for people to argue—as with criminal cases in England—that an application should be implemented in Scotland, which would provide a route for criminal cases to go to the Supreme Court.

Does the member recognise that the Lord President’s letter says:

“the High Court should be brought into line with the Court of Appeal (Criminal Division) and the Court of Appeal of Northern Ireland by the requirement of certification by these intermediate appeal courts as a precondition of any criminal case being taken to the UK Supreme Court”?

Does what our most senior judge has written on behalf of himself and his colleagues not carry significant weight in legal terms?

If Mr MacAskill looks back at the submissions to the expert group that Lord Wallace established, he will see that only two submissions supported the route that Mr MacAskill proposes. A considerable amount of work must be done to provide evidence that supports Mr MacAskill’s view and to deal with legal and technical issues that have arisen in the discussion—there is some way to go on that. Going down the proposed route could also restrict access to justice by disallowing direct appeals to the Supreme Court.

It is important to get the law right and to produce a robust system that works in the 21st century. Several important matters, some of which are technical and complex, need to be considered fully before any amendments are made to the Scotland Bill.

I move amendment S4M-01133.3, to leave out from first “welcomes” to end and insert:

“regrets the inappropriate language of the First Minister and the Cabinet Secretary for Justice with regard to highly respected judges of the UK Supreme Court and the threat to withdraw funding from the court; notes the conclusions of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of the Justiciary and the Supreme Court in criminal cases; welcomes the group’s reaffirmation of the continuing role of the UK Supreme Court in constitutional and human rights issues affecting Scotland; recognises that the McCluskey report and the work of the expert group set up by Lord Wallace raise some important questions in relation to devolution issues, the requirement for a general public interest certificate to be issued by the High Court of the Justiciary prior to appeal to the Supreme Court and widening the scope for appeals to the Supreme Court on European Convention on Human Rights grounds to include potential violations by any public authority, and believes that detailed consideration of all the relevant issues and implications of the range of reforms identified is essential and that this must involve discussion with all interested groups to ensure that any reforms deliver a fair and effective judicial system.”

15:22

I, too, welcome the opportunity for members to look in detail at the final report by Lord McCluskey’s review group. We had an informative debate on the interim report in June and we are now in a position to look at Lord McCluskey’s final report.

I add my appreciation to that of others for the work that Lord McCluskey and his team did in producing the report. Disagreements on the detail of the report’s conclusions are inevitable, but the report undoubtedly provides a clear and helpful analysis of the issues that are at stake. Unfortunately, many of the Scottish Government’s pronouncements have been less than helpful. To avoid doubt, we should be clear that the McCluskey review endorsed the proposition that the Supreme Court should retain a jurisdiction in respect of appeals in criminal cases from Scotland when those cases raise questions of compatibility with convention rights.

The UK Supreme Court acts as a buffer between the High Court and the European Court of Human Rights. It allows human rights issues in controversial criminal cases to be resolved in the UK before the time and resources of an already overburdened international institution are demanded. The cabinet secretary has claimed that referring cases from Scottish courts directly to the European Court of Human Rights would be simpler. Perhaps he should remember that the court in Strasbourg has a backlog of about 150,000 cases and a three to four-year waiting time. If we slowed access to justice through such an approach, we could find that more cases were eligible for appeal.

When the UK court rules on Scottish cases, it does not judge on the facts of the case or release a proven or not proven verdict. Instead, its remit is restricted to particular points in connection with the European convention on human rights, so the constitutional system provides a more immediate process for interpreting the human rights rules that the ECHR establishes more conveniently than going directly to the European court in Strasbourg.

The motion rightly mentions the Scottish legal system’s historic independence and the need to maintain that. I doubt whether any member from any party disagrees with that. However, I gently remind the cabinet secretary that, just as the proudly independent Scottish legal system historically did not exist in a vacuum, so our justice system today must be seen in the context of our national and international legal obligations. That the High Court of Justiciary has a relationship with the UK Supreme Court and the European Court of Human Rights in Strasbourg does not in itself imply that Scotland’s legal system is in some way bereft of integrity. Rather, it shows that Scotland and her legal system is an independent part of the United Kingdom and the European Union.

As the Law Society recognises, Scots law has always been outward looking, both in providing a model for other legal systems to follow and in looking to other legal systems for good practice and inspiration. We believe that our legal system is strong because of that willingness to learn from other systems, and the SNP ought to be careful that its political attempts to reduce the UK Supreme Court’s influence on Scotland do not come at the cost of an effective legal system that provides fair access to justice for all.

That said, we fully recognise the need to tidy up how the UK Supreme Court engages with Scots law in determining points that relate to human rights. It is to be welcomed that the report underlines the need for coherence in the way in which human rights laws are applied north and south of the border. The UK Government has made it clear that it will review Lord McCluskey’s recommendations carefully. The Advocate General, Lord Wallace, has met Lord McCluskey to discuss his report and I understand that he will do so again. In clear contrast to the negativity and bickering from the Scottish Government, Her Majesty’s Government at Westminster has shown that it is prepared to take a responsible and constructive path to ensuring that the integrity and effectiveness of Scots law are respected and maintained.

As we have seen, the review group recommends in its report that the UK Supreme Court should have the power to rule on human rights issues that arise from Scottish criminal law cases. However, it argues that that should occur only if the High Court of Justiciary permits the appeal. Permission would be granted through a certificate that notes that the case raises a point of general public importance. The Government, which has done all that it can to undermine the integrity of the UK Supreme Court in recent months, has welcomed the proposal with open arms. We in this part of the chamber believe it to be an unnecessary proposal that might have far-reaching negative consequences for access to justice in Scotland.

The Law Society has also made it clear that it disagrees with the recommendation. Its point is that individuals, whether they are in Scotland or in other parts of the UK, have rights that are particular to the individual and they should not be assessed against such a test. The SNP’s dogmatic political desire to narrow the UK Supreme Court’s scope on Scottish matters should not be pursued at the price of restricting full access to justice for Scots.

As I said, we welcome the work that Lord McCluskey and his team have done on the role of the Supreme Court in relation to Scots law, but we do not accept the spin that the Scottish Government has put on it. We will continue to fight to maintain the integrity of Scottish criminal law, but firmly within the context of Scotland’s place in the United Kingdom.

I move amendment S4M-01133.1, to leave out from “this position” to second “criminal cases” and insert:

“the position of the High Court of Justiciary should be maintained in its rightful place at the apex of that system”.

15:28

I, too, welcome the opportunity to debate the review group’s report and set it in the context of the wider debate. I find it interesting that, after the Government’s refusal for so long to engage with the Scotland Bill process, it is now taking to scheduling debates in the Parliament in the hope of encouraging ever more amendments to it.

It is difficult to know where to begin with the Government’s motion. I am drawn immediately to the reference to

“restoring the High Court to its rightful place at the apex of”

the Scottish legal system. I agree that the High Court should remain as the final court of appeal in Scottish criminal cases, but the key word is “remain”. I do not believe that its position has ever been in doubt. There are certainly some issues about the precise way in which our legal system interacts with the Supreme Court and it is right that that relationship should be clarified. I will touch on those issues in a moment, but first I must again thank Lord McCluskey and his group for their work on the report. Hearing additional viewpoints to inform the debate is always helpful. However, I must repeat two points that I made in our debate on the initial report in June.

First, let us remember that the report was commissioned by the Government as an attempt to justify its intemperate comments towards the Supreme Court on the back of the Nat Fraser ruling. That the report has singularly failed to endorse the Government’s call that the Supreme Court should play no role in Scotland should serve as a reminder to both Kenny MacAskill and Alex Salmond that they ought to think a little before they shout. Secondly, I am still unsure why we seem to be giving the report the same weight and significance as the report of the Advocate General’s expert group, which was put together over many months on the back of evidence taking and discussions with a wide range of experts and interested parties.

That said, Lord McCluskey’s report raises a number of relevant issues. I am particularly interested in his recommendation that we widen the scope for referrals to the Supreme Court beyond the acts or omissions of the Lord Advocate and that appeal to the Supreme Court be open, regardless of which public authority is alleged to have violated a person’s convention rights. If a practical way can be found to incorporate such a change, the move seems eminently sensible. The Lord Advocate is not the sole point of contact for ensuring that accused people’s convention rights are protected and I hope that we can consider and discuss this issue further as the Scotland Bill progresses. I was interested to hear Kenny MacAskill support such a change earlier this afternoon. I am also content with the report’s recommendation that the Supreme Court remit cases in which it has found a convention breach right back to the High Court for it to determine the appropriate disposal.

However, I cannot agree with Lord McCluskey’s recommendation on certification. I recognise that this tricky issue merits debate but, so far, there have been inconsistencies in comparisons. It has been mentioned more than once that a system of certification already exists in England and Wales and Northern Ireland but, as members of the Advocate General’s expert group made clear in response to Lord McCluskey’s group, any such comparison is flawed because, in those jurisdictions, the Supreme Court is the final court of appeal for all aspects of criminal law. Of course, that is not the case in Scotland.

The Advocate General’s group also noted the many exceptions to the certification system that are in place in the rest of the UK.

The member seems to be suggesting that, south of the border, the UK Supreme Court is the final court of appeal on criminal matters. Given that it is accepted even by the Advocate General that it is not meant to be, the justification for certification in Scotland is even greater than it is south of the border and it is therefore no wonder that, in response to comments by his fellow judges, the Lord President has written seeking certification.

I do not agree. The reason for having certification south of the border is the vast number of cases that might appear in the Supreme Court. The number of such cases is constrained in Scotland because only devolution issues are involved.

The Advocate General’s group noted that many exceptions to the certification system are already in place in the rest of the UK and believed that it would be wholly inappropriate for Scotland to adopt certification unless similar exceptions were put in place—and such a formulation would, it said, “not be straightforward”.

In any case, I fear that, once again, this debate is approaching the whole issue of ECHR compliance from the wrong angle. It is all very well for the cabinet secretary and the First Minister to be outraged that a “foreign court” is “undermining” Scots criminal law with its decisions. However, what I am outraged by—and what this Government should be outraged by—is the fact that our laws still have flaws that allow people's human rights to be impinged on in the first place.

As I said back in June, the perception remains that engagement with the ECHR tends to focus on criminal cases and that, therefore, it is a means of protecting the criminal classes. However, such a perception is not the reality, and nor should it be used as an excuse not to take action to ensure that Scotland’s laws are compatible with the convention. I firmly believe that the Scottish Government must heed the Law Society’s calls for a full review of Scottish criminal law and procedure to determine its compatibility with the ECHR.

I am very concerned that there remains a distinct air of “wha’s like us?” in the Government’s approach to this whole issue. Enshrining and protecting human rights in our laws should be a basic principle of government. However, when discussing concerns about potential human rights implications of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the Lord Advocate appeared to be of the view that the law would be compliant, simply because he

“cannot act in a way that is incompatible with ... the ECHR.”—[Official Report, Justice Committee, 20 September 2011; c 302.]

Ensuring the protection of human rights is far more complicated than that. The Government must take the issue seriously and I hope that, as we move forward, the debate on this issue will be more about the deficiencies of our law and less about taking cheap pot shots at the Supreme Court.

I move amendment S4M-01133.2, to leave out from “conclusions” to end and insert:

“constructive work of the review group chaired by Lord McCluskey on the examination of the relationship between the High Court of the Justiciary and the Supreme Court in criminal cases and notes that this follows the work of the Advocate General’s expert group that examined this issue last year; in particular welcomes the review group’s view that the Supreme Court should continue to have jurisdiction in relation to issues of convention rights arising in Scottish criminal cases; recognises that the High Court of the Justiciary is currently the final criminal court of appeal in Scotland; agrees that, in disposing of an appeal, the power of the Supreme Court should be limited to declaring whether or not there has been a breach of a convention right and, if there has been, to saying why this is so, and calls on the Scottish Government to work constructively with the UK Government to take forward a thorough and detailed consideration of the recommendations of both expert groups.”

15:34

I declare an interest as a member of the Faculty of Advocates.

I welcome the findings of Lord McCluskey’s further report as part of the on-going debate about the UK Supreme Court and its relationship with the High Court of Justiciary. However, we should remind ourselves that the High Court of Justiciary’s position as the final court for determining criminal justice in Scotland was reaffirmed in section 124 of the principal piece of legislation on criminal procedure in Scotland, which was passed by the UK Parliament as recently as 1995.

As a member of the SNP, I would prefer Scotland to be a signatory to the ECHR with its own supreme court. Alas, that is not the situation we find ourselves in.

Much of the debate concerns the provisions of section 57 of the Scotland Act 1998, in particular subsection (2) and the assessment of whether the Lord Advocate in his acts has acted in a way that is incompatible with convention rights. From the passage of the Scotland Act 1998, the Judicial Committee of the Privy Council has been required to exercise a devolution jurisdiction, and the Lord Advocate has been required to act in a convention-compliant way, subject to the limited exceptions in section 57(3).

In practice, matters have become interrelated and confused. It is accepted by the UK Government, as well as the Scottish Government, that section 57 needs to be changed, and provisions to amend it are in the current Scotland Bill. However, although clause 17 of that bill removes the devolution issue label from acts and failures to act by the Lord Advocate, it talks about them instead as convention issues. In Lord McCluskey’s view, that simply changes the paperwork and not the substance. I find it hard to argue with his view.

Lord McCluskey believes that there ought to be parity between the High Court of Justiciary and the English courts with regard to appeals, and he recommends that only cases that raise a point of general public importance certified by the High Court should end up at the Supreme Court. The Supreme Court in England can act as a final court of criminal appeal, but that has never been the position in Scotland.

I will quote from paragraph 37 of Lord McCluskey’s final report:

“When the Human Rights Act was passed in 1998, the decision was implicitly taken that certification, required in most criminal proceedings, was still to be required in English cases even when the issue in the proposed appeal was one of compatibility with convention rights.”

If that is the practice in England, it should be so in Scotland too.

As the cabinet secretary said, the Lord President has this week commended the proposal that the High Court should be brought into line with the criminal division of the Court of Appeal in England and the Court of Appeal of Northern Ireland by the requirement of certification. That surely must carry some weight.

I turn to the recommendation that

“the Supreme Court should be limited to declaring whether or not there has been a breach of a Convention right and, if there has been, to saying why this is so.”

I agree with that proposal. The human rights of the accused should be the same in convention terms, be they in Edinburgh or Exeter, even if the practices and procedures of criminal law in those jurisdictions differ. As the Scottish Law Commission said in October 2010:

“There is no more reason why a particular feature of Scots criminal law need be the same as any feature of English criminal law in order to comply with the requirements of the Convention as there is that any feature of either system should be the same as a feature of Russian law to achieve that purpose.”

There are reservations in the legal profession about the proposals, not least from the Law Society of Scotland. It opposes the idea of mandatory certification by the High Court of issues of general public importance before a case may proceed to the Supreme Court:

“Requiring a certificate of public importance could raise the situation where some people are restricted from appealing because the contravention of their human rights does not meet that test and this, we feel, could restrict access to justice.”

That argument has an attraction—we should avoid a hierarchy of rights—but I am not sure how many cases would be affected in practice and, moreover, it risks putting us out of step with the rest of the UK. If there is a need to review the nature of the test, it should be addressed across all jurisdictions in the UK.

I turn to the question whether the Supreme Court should be able to hear appeals where an appeal was refused by the High Court. It is important to bear it in mind that Lord McCluskey is actually saying that the Supreme Court should have the power to grant or refuse leave but that it should have no power to consider granting leave unless a certificate that the matter is of general public importance has been granted by the High Court. If the Supreme Court has an unfettered jurisdiction to hear appeals, inevitably its position is as the final arbiter in the system, which has the potential—I use the word advisedly—to damage the integrity of the Scottish criminal justice system.

In the desire to allow the Supreme Court to have such an unfettered right, there is among some people an inherent criticism of some recent High Court decisions. The answer to that is not to imply that the Supreme Court knows better but to ensure that convention issues remain at the forefront of judicial culture, tradition and training in Scotland’s courts. However, even as a fully independent nation, we should never be afraid to learn from other jurisdictions while respecting our own traditions.

Finally, I turn to the recommendation to refer devolution issues to the Supreme Court when they raise issues of compatibility. I agree that that is a good proposal. I am glad that the cabinet secretary accepts that. As I recall, that was one of the criticisms of Justice Scotland in a briefing at the time of Lord McCluskey’s first report. I welcome the report.

I have a wee bit of time in hand for interventions.

15:40

The debate is about Scots law, not about any other system. It is about respect for the unique features of Scots law.

When the UK Supreme Court commenced operations on 1 October 2009, it took on the judicial functions of the House of Lords: appeals from England, Scotland and Wales, including human rights issues.

With regard to Scotland, it was envisaged that the UK Supreme Court would hear civil appeals from the Court of Session. The intention was that the High Court of Justiciary remained the highest court of criminal appeal. One unintended consequence of the inauguration of the UK Supreme Court has been that Scottish criminal case defendants can appeal to the Supreme Court on human rights grounds. That was never imagined when the court was established.

As we have heard many times, unlike English and Welsh defendants, Scottish defendants can appeal to the Supreme Court without leave to appeal from the High Court. That clearly puts Scots law on a different footing from legal systems elsewhere in the UK.

I quote Paul McBride QC, who is a much-quoted man in this chamber. He states:

“the truth of the matter is—you can get to the Supreme Court in Scotland by-passing our Scottish courts, you can’t do that in England. That’s unacceptable.”

I agree that it is unacceptable and it is also unacceptable that the UK Supreme Court has overturned decisions of the High Court of Justiciary.

The UK Supreme Court should not be ruling on remedy as an ordinary court of appeal. It should be fulfilling its function as a constitutional court: interpreting and defining convention rights and relaying those judgments back to the High Court to determine remedy. This is clearly a matter of devolution not functioning correctly. The original provision in the Scotland Act 1998 never intended matters of criminality to be considered under the locus of devolution issues.

A matter of Scots identity is at stake. The UK Supreme Court interferes in Scots criminal law and that impacts on the distinctive nature of Scots law. The Scottish Government seeks a position in the Scotland Bill whereby the UK Supreme Court should not have any general jurisdiction in matters relating to criminal law.

My colleague Rod Campbell quoted from the Scottish Law Commission’s submission to the Advocate General’s review of devolution issues. The submission goes on to state:

“The European Court of Human Rights has recognised the ... inadvisability of attempting to introduce a ‘one size fits all’ approach to disparate systems of criminal justice.”

That is something that the chamber should recognise. I hope that the chamber will stand up for Scotland’s distinctive legal system and prevent further interference.

I, too, welcome the report published by Lord McCluskey and his colleagues. It was announced on 5 June that there would be a review of the law and practice that currently governs the respective jurisdictions of the High Court of Justiciary and the UK Supreme Court.

It is important to note that Lord McCluskey and his colleagues considered the issues within the current constitutional settlement. We have heard from the Cabinet Secretary for Justice that that is not necessarily how we will see things in the future.

We have also heard that we wish the recommendations to be implemented. It is agreed that the Supreme Court should continue to have

“an appellate jurisdiction in relation to issues of convention rights arising in Scottish criminal cases”.

However, it is important that the extent of its role should be clearly defined and limited. The High Court of Justiciary should remain the final court of appeal in Scottish criminal cases.

I strongly support the view that an appeal to the Supreme Court from the High Court should require the granting of a certificate that the case raises a point of law of general importance or concerns the victim of a violation of convention rights under the ECHR.

The existing system whereby the UK Supreme Court is a court of appeal within the criminal justice system is constitutionally problematic and affects the historical independence of Scots law. The Supreme Court’s role clearly needs to be defined.

As we have heard, the current Scotland Bill proposals are profoundly flawed and require significant recasting to maintain the High Court of Justiciary as the apex of the Scots legal system. There is no reason to make the position of the High Court different from the position of courts elsewhere in the UK.

It is disappointing that issues have been raised about the Scottish Government’s commitment to human rights. The Government remains fully committed to human rights. My colleague Alison McInnes, along with other members and the Law Society of Scotland, has raised issues about the need for an audit of Scots criminal law to ensure compatibility with the ECHR and avoid costly compensation claims. We all support that. Indeed, the Cabinet Secretary for Justice has indicated that that will occur. As we have heard, in any case, that forms part of the scrutiny of any proposed legislation that passes through the Parliament.

It is important to note that the Scottish Government is not inward looking—it is outward looking. As my colleagues have said, we have learned from abroad and will continue to do so. It is important that we play our part in international law. We, like all members, are supportive of human rights and social justice, but that does not mean that we will not defend our unique legal system and prevent further interference.

15:46

It is hard to conclude that the Scottish Government is, as John Finnie suggested, outward looking on the issue that we are discussing, because everything that Government ministers have said has been not only inward looking, but intemperate and narrow-minded. In fact, many of their comments have been misplaced. James Kelly referred to comments that the First Minister and the Cabinet Secretary for Justice have made. They have said a range of things that I hoped they would have reflected on and come to the Parliament to apologise for.

Earlier, Murdo Fraser raised a point of order about the First Minister misinterpreting or misstating someone else’s comments and misleading the Parliament. On this issue, the ministers also have form. On 27 May, Lord Hope said that the First Minister

“misunderstood the law and the facts”.

That has been evident in what ministers have said throughout the process.

I was interested in Kenny MacAskill’s somewhat pompous reply to Johann Lamont. His protestations were both hilarious and pathetic. He spent some time saying how delighted he was to welcome the report from Lord McCluskey, although I thought that perhaps he would take time to apologise to Lord McCluskey for some of the things that he has said. Lord McCluskey has been quoted in The Telegraph as saying that Mr MacAskill ought to be “ashamed of his comments” and that his comments were “unsuitable” for a man holding his office. We have heard nothing since to suggest that Mr MacAskill is in any way ashamed of or apologetic for anything that he has said, even though he has now accepted a report that fundamentally goes against everything that he and the First Minister had argued.

Mr MacAskill’s attempt to get Lord McCluskey to come up with something that suited him was the latest in a series of such attempts. There was also the Walker report, which was shelved because it did not come up with the recommendations that suited the Government.

Sometimes in the Parliament, we use words loosely and out of context. I wanted to use the word “hubris” because the cabinet secretary, the First Minister and others in the Administration have shown a degree of it, but I thought that I had better check exactly what the word means. I found that it means extreme haughtiness—well, we have heard that today from the cabinet secretary. It means pride or arrogance, which we have certainly seen throughout the debate. The definition goes on to suggest that hubris often indicates a loss of contact with reality. We can clearly see a loss of contact with reality in the cabinet secretary’s behaviour on the issue, all the way up to now, including accepting a report that contradicts what he wanted. The definition also describes hubris as an overestimation of one’s competence or capabilities—that is certainly true—especially when the person exhibiting the behaviour is in a position of power. That definition was written specifically with Kenny MacAskill in mind.

When are we likely to hear from the Government an admission that it was wrong and that—

Will the member give way?

Certainly.

I thank the member for giving way. It is interesting to hear about his research into the definitions of various words but it would be quite helpful if he could come to the point and indicate his position on the specific recommendations of the McCluskey review group.

Other members in my group have outlined their specific points on that, but we must take notice of the general context. Earlier this year intemperate and disgraceful remarks were made about ambulance chasing and Mr MacAskill said that he no longer intended to fund the Supreme Court to look at cases that we did not think should be going there. In fact, he is now proposing to do that, because the McCluskey review did not come up with what he intended.

When I reflect on the matter I thank God that, although we have a majority Government that is predicated on a minority vote and no revising chamber, we have another body that is capable of putting in checks and balances. Had it been left to the Government, changes would have been railroaded through if they had had the power to do it. Now we have a conclusion that is completely at odds with what the Government wants.

I welcome the fact that the recommendation is for the Supreme Court to have a role. I do not agree with certification, and other members have ably outlined why that is not the right thing to do. I hope that, on reflection and at the end of the debate, we might hear some words of apology for the way in which the issue was handled and the debate was conducted.

15:52

Obviously, I did not think things out too well when I sat down for this debate next to an advocate. However, I hope that I can show some good old-fashioned common sense.

We need to discuss the matter soberly. The public does not understand the legal definitions and the problems that are being discussed. All that they see is a decision being made in another court and another place. We must all be careful to take the public with us when we make these decisions.

I have two examples from Paisley, and I use Paisley examples because I know them very well. The first example is the Glen cinema disaster in 1929 that led to health and safety rules being changed because 69 children were killed when black smoke engulfed the cinema. That was not a criminal case, but it is an example of the public being part of and remembering a legal decision that was made at a later date.

My second example is Donoghue v Stevenson in 1932: the decomposed snail in the ginger bottle. That case was unfortunate for the cafe owner at the time but it brought up the idea of negligence in retail and cafes.

Will the member give way?

Against my better judgment, I will.

Is the member aware that the High Court got the Donoghue v Stevenson decision wrong in a sense? It was actually the House of Lords that established the principles of negligence and essentially laid the foundation for the law of negligence worldwide.

As I said, the cases that I have been discussing are civil, not criminal.

The public believes and the cabinet secretary is correct to say that the distinctiveness of Scots law has been at the heart of our national identity in civic society. I would go so far as to say that our Parliament exists because Scots law retained its independence from the early years of the union until now.

As part of my example about why we should be careful to take the public along with us, I will use someone as simple as my wife’s aunt—[Laughter.] I do not mean simple in that way. I mean that the discussion or argument is simple.

She keeps phoning up my wife to ask why that court down south is making decisions for Scots law. That is the kind of discussion that people who are not in the legal profession are having. The common sense of ordinary hard-working people means that they cannot understand why criminal cases from the Scots legal system, of which we are justifiably proud, have to be heard outwith Scotland. They are asking themselves why there has to be another tier after the High Court in criminal cases, and I admit that I feel the same way.

The establishment of the UK Supreme Court under the Constitutional Reform Act 2005 has led to an increase in the potential for judgments in high-profile criminal cases in Scotland to be overturned on appeal. I believe whole-heartedly in justice and everyone’s right to appeal, but some of the decisions that have been made have upset the public in Scotland.

That state of affairs has been caused by a quirk of various acts since devolution. Within the UK, Scots law is no longer on an equal footing with the law in the rest of the nation states of the union. People who know more than I do have said as much. Brian McConnachie QC, who is vice-chairman of the Faculty of Advocates criminal bar association, said:

“It’s difficult to argue that we should have something different here than in England.”

I agree with some of the recommendations of Lord McCluskey’s review group. It believes that the High Court of Justiciary should remain the final court of appeal in Scottish criminal cases, and that an appeal to the Supreme Court should require the granting by the High Court of a certificate that the case raises a point of law of general public importance. It also believes that it is not appropriate that the Supreme Court be required by statute to apply the test of miscarriage of justice in Scottish criminal appeals. My simple ideal of the law tells me that those are good ideas for Lord McCluskey to proceed with.

The Scots legal system is one of the mainstays of Scottish life. It was a part of Scotland before the union, it has been a part of Scotland during the union and it will be an important part of Scotland after the union. However, the debate is about the current situation and the quirk that means that Scotland is the only part of the UK in which a case can bypass the High Court and be heard in the Supreme Court. This is not a discussion just for the chamber or the legal profession; it is one that Scots are having the length and breadth of the country. They believe that the current situation is not proper and that something has to be done about it.

I remind members that we have a wee bit of spare time. Members taking interventions would be preferable to any shouting out from the seats.

15:57

I preface my remarks by stating for the record that I am a member of the Law Society of Scotland and that I hold a current practising certificate. I remember well the case of Donoghue v Stevenson, which my colleague George Adam brought up. I did not expect to hear about that case today, but I guess that that is just one of those things.

As a lawyer, the starting point for me in the debate is the fact that the Scottish legal system is independent, even if other areas of life in Scotland are still to catch up—although I firmly believe that that will happen before long. As a Parliament, we have a duty to do what we can to preserve the integrity of our legal system and to ensure that it works in a coherent way.

I want to deal directly with the point that Johann Lamont—who is moving her chair—raised. The debate is not some exercise in constitutional navel gazing, nor is it a discussion of an issue that has no impact on the real lives of hard-working people, as my colleague mentioned. It is a debate that deals directly with the operation and the efficiency of our legal system, which is important to all of us.

I very much welcome the comprehensive report that the independent review group led by Lord McCluskey has provided. As the cabinet secretary said, the Scottish Government has accepted the report’s recommendations, and I understand that the Lord Advocate has written to the Scotland Bill Committee to set forth the kind of provisions that should be included in the Scotland Bill if the recommendations are to be implemented. Kenny MacAskill said that he is now progressing matters in his capacity as Cabinet Secretary for Justice.

As we have heard, one of the key recommendations concerns certification; specifically, it states that an appeal from the High Court of Justiciary to the UK Supreme Court should be competent only when the High Court has granted a certificate that the case raises a point of law of general public importance. That will deal with the anomalous situation in which certification is required as a matter of principle in the other UK jurisdictions, even if there are exceptions in certain cases. As a general rule, allegations of convention rights incompatibilities that occur elsewhere in the UK do not reach the Supreme Court unless there is certification.

That goes back, as Alison McInnes mentioned in a slightly different context, to the fact that the House of Lords was the final court of appeal for criminal matters for those other jurisdictions, which is not the case in Scotland as enshrined in the acts of union. When the Human Rights Act 1998 was passed, the certification rule was implicitly extended to cover compatibility cases in the other UK jurisdictions.

However, even if that was not the case, and there was suddenly no certification system in the other UK jurisdictions—as I understand it, there has been no significant attempt to abolish that requirement in the rest of the UK—it would still be necessary, in my view and the view of the McCluskey review group, to ensure that the High Court’s historical position as the final court of criminal appeal in Scotland was preserved given that we have an asymmetrical set-up in the UK.

Paragraph 41 on page 15 of the review group’s report states:

“In particular, we seek to ensure that the Scottish criminal justice system, unique amongst the constituent systems of the UK in its historical independence from the apex criminal appeal court for the rest of the UK, should not now, in the area of Convention rights, become more subject to interference from that apex court than the courts of these other systems.”

That states the review group’s position on certification very clearly. There has been interference from the UK Supreme Court, and we need to do something about it now that the opportunity has presented itself in the form of the Scotland Bill.

Concerns have been expressed about a possible diminution of the individual’s rights if such a certification system were to be introduced in Scotland, but I simply do not agree. Those concerns are based on a misunderstanding of the UK Supreme Court’s role. The High Court in Scotland has always been the final court of appeal in criminal matters. It is the competent court, and it is perfectly capable of continuing its centuries-old role. It was never intended that the UK Supreme Court should have jurisdiction over Scots criminal law decisions as if it were a new and final court of appeal in Scottish criminal cases, as the review group has pointed out.

Annabelle Ewing’s premise seems to be that the Supreme Court’s ability to take cases from Scotland should be limited. It was not clear from the cabinet secretary’s speech whether, with regard to the McCluskey report’s point about ECHR breaches, public authorities could raise cases with the Supreme Court through the certification route. Does the SNP support that?

If I understand James Kelly correctly, he is addressing the issue of deleting the reference to the Lord Advocate and extending it to cover public bodies, which is being done simply to deal with the current reality. If James Kelly takes the time to read the report in full, he will note that it deals with that issue. It has been suggested that the language of “Lord Advocate” is being stretched to incredulous scenarios simply to ensure that acts of public bodies are properly included in the process. The change therefore does not enhance the scope of anything—it simply corrects a language problem that currently exists.

Some people argue that the rights of people in Scotland will somehow be diminished, but nobody seems to be arguing that there is any concomitant diminution of the rights of people in the rest of the UK where the certification system is currently in place. There must therefore be some other reason why members have put forward those arguments in the chamber today.

In conclusion—you have been more than generous with my time, Presiding Officer—I welcome the report and support all its recommendations. I refer once again to the letter from Lord President Hamilton that was sent to the Scottish Parliament information centre, which is dated 25 October 2011, which has been read into the record. We can place significant weight on the views of the Lord President and the judges of the Court of Session in this matter.

16:05

I thank Lord McCluskey’s group for the effort that it has made and the quality of the report that it has produced in such quick time and in unfortunate circumstances. I trust that the Government will encourage consultations on many of the recommendations that have been discussed in the chamber today and which still cause some concerns.

The cabinet secretary’s motion refers twice to the “integrity” of Scots law and comments on the “historical independence” of Scots law. It is therefore a pity that neither the First Minister nor the Cabinet Secretary for Justice considered those issues before uttering their inflammatory comments in respect of the procedures around the Supreme Court.

We should have been spending our time in this chamber discussing other issues affecting Scottish communities: jobs, unemployment, health, education or the economy.

The notion of an entirely independent Scottish legal system in this complex world might be a comfort to some practitioners of law, but the public merely want an effective system that delivers justice.

Why are we discussing the Supreme Court today? It is largely due to the First Minister’s senseless outburst about the Supreme Court.

Does the member not think that he, like many Labour Party members, is becoming victim to thinking that the debate is about the rhetoric rather than the substance of the issue, which is the independence of Scots law?

The point I am making, which the member makes well for me, is that the rhetoric got in the way of the substance and deflected our attention from the key underlying issues.

The First Minister’s outburst about Supreme Court judges was followed by the Cabinet Secretary for Justice’s observations about those justices’ knowledge. Let us remember that Lord Hope and his unfortunately now deceased colleague Lord Rodger were both acknowledged experts in jurisprudence. So, why the discord? Both judges were, unfortunately, members of a court that was not based in Lamlash but located in London. What we have here is a manufactured stushie born of the devolution settlement of 1998. The Scotland Act 1998 enabled the Judicial Committee of the Privy Council in London to act as an arbiter on human rights issues, although at the time Alex Salmond MP described the organisation as consisting of many members who had held political office and owed their appointment to the council to politics. It has been six years since the Constitutional Reform Act 2005, which ensured that those responsibilities were passed on to the Supreme Court. Only now, 13 years after the original legislation, have we had the outburst.

The Cadder case quite properly resolved issues around a person’s right to have access to a solicitor when interviewed by the police. The Supreme Court decision confirmed Scotland’s respect for fairness and justice, but the Fraser ruling on whether it was fair that crucial evidence was withheld from the defence by the Crown seemed to cause the Government immediate concerns. If I was more cynical, I might have suspected that the Scottish Government was merely manufacturing its ire over such issues, but of course nothing so puerile could be at work here.

Today’s motion shows that ministers were primarily concerned about the integrity of Scots law and its historical independence, which was perhaps better described by the justice secretary as the principle of who pays the piper calls the tune. That is not very edifying, but such an approach flags up warning signs about the dangers of political interference in enforcement and justice matters.

Is the member not aware that there is a Scotland Bill going through down in London that has clauses that deal fundamentally with Scots law? Does he not think that that is a matter on which we should comment? Is it not for that reason that Lord McCluskey has brought forward his report? Is it not the case that unless Parliament takes a position on the matter and Lord McCluskey comments on it, decisions may be taken south of the border regarding the Scotland Bill that will have huge ramifications for the integrity of Scots law? Or does that matter not apply?

The cabinet secretary will remember that Lord McCluskey reported in those terms because the cabinet secretary asked him to report. The reason why he asked him to report is that such a furore was created in the lead-up to our discussions, in which we are engaged today.

We must remember that there are real political dangers in interfering in enforcement and justice matters, particularly given the future formation of a single police force. I hope that Mr MacAskill will not seek to call the tune there, too.

Throughout this heated argument, one office has maintained a consistent silence: that of the Lord Advocate. Not a syllable, word, sentence or paragraph has left his lips on this constitutional crisis, and some would say rightly so. It is a pity, however, that he did not maintain a similar dignified silence when it came to the political shenanigans surrounding the matter of sectarianism and football supporters. One would have hoped that he would be better suited to contribute to this debate than to one on football issues, but needs must.

Does the member accept that the Lord Advocate has, indeed, written to the Scotland Bill Committee about this very subject in a letter dated 26 October?

Certainly, I am aware that the letter was written on 26 October. The member might remember that we have had some months of debate about this important issue and many comments from people who are less able—[Interruption.] We received the letter this morning and it has not been part of the public debate or the debate in the chamber.

This stushie should have been resolved quietly and with some decorum, using a small, specialist team in committee to examine and report, not unlike—

Mr Pearson, can you start to conclude now, please?

Indeed.

It should have been not unlike the McCluskey report, which we have already welcomed here. Not one South Scotland constituent has expressed to me any interest in the First Minister’s concern about the Supreme Court, because they are too busy struggling with other matters of import. Significantly, the Supreme Court will be maintained as a welcome opportunity for Scottish justice to see itself as others see it through appropriate decision making in areas of the European convention on human rights.

Mr Pearson, you must conclude.

I am grateful to you, Presiding Officer—thanks very much.

16:13

All of us in the chamber are only too aware of the impact that Supreme Court decisions have had on Scots criminal law, not least with such high-profile judgments as that on the Cadder case. We now have a UK court with the power to overturn and overrule the judgments of the High Court and radically reshape the Scottish legal system as a result. Make no mistake about it: this threat to the independent legal system that Scotland has held on to since the act of union has caused significant disquiet in the Scottish legal profession. What makes the situation more intolerable is that it has developed through a quirk of legislation, or a loophole in the system that has, at a stroke, jeopardised centuries of Scottish legal tradition and, indeed, given the UK Supreme Court more power over Scottish criminal law than it holds over equivalent courts in the rest of the UK.

I do not believe that the situation that has been allowed to develop is an underhanded power grab or a premeditated effort to undermine the independence of the Scottish legal system. No: it is quite simply a result of a lack of consideration for Scotland and the failure of the then UK Government to think through the consequences that the legislation would have north of the border. As has often been the case at Westminster, Scotland was an afterthought—if it was considered at all—and, just a few years later, we are left to pick up the pieces.

It was never intended that the Supreme Court would act as an appellate court in Scottish criminal cases and supplant the role that the High Court has held for centuries as the highest court of appeal in such matters. Restoring the High Court to the apex of the Scottish legal system is a matter of correcting something that was not at any time intended to be a part of the devolution arrangements.

The report of the review group chaired by Lord McCluskey recommends that the Supreme Court be limited to interpreting and defining when and where breaches of the ECHR have taken place before remitting such cases back to the High Court to determine the appropriate disposal of the case. The Supreme Court should not have the powers of disposal over Scottish cases that it currently has. It is essential that that recommendation is acted on.

It is difficult to see any justification for the Supreme Court continuing to hold the power to grant a leave to appeal where certification has been refused by the High Court in Scotland when it does not hold the power to do so in cases that come from courts in the rest of the UK. I hope that the need to alter that situation is universally accepted in the chamber and beyond.

As others have said, it is somewhat perverse that devolution has resulted in the Scottish courts having less autonomy while Scotland has gained more autonomy over other aspects of Scottish life. Introducing a certification requirement would at least bring equality for the Scottish criminal justice system with its counterparts in the rest of the UK.

It is worth noting that the review group’s report condemns the Scotland Bill, which is progressing through Westminster, as being “seriously flawed”. That description of the bill seems to be coming from more and more quarters these days. Will the report finally be the one that leads to a substantial reworking of the flawed legislation that is being proposed? I am not holding my breath. Far from limiting the inappropriate role that the Supreme Court has taken on in the Scots legal system, the current provisions of the Scotland Bill would entrench that role. Such a move is far from desirable and would be completely out of step with the review group’s recommendations. I understand that Lord Wallace is reflecting on that matter. The time has come for him to accept the need to change course and limit rather than enhance the role of the Supreme Court in hearing Scottish criminal cases.

I welcome the review group’s conclusions and the case that it has made for restoring the High Court to its rightful place as the final court of appeal in Scotland for criminal cases. I hope that the UK Government can see the clear need to adopt its recommendations and alter the necessary legislation to address the issue.

16:18

We have heard from many lawyers today. Like my colleague George Adam, I come at the issue from the aspect of an ordinary punter, but during my study before the debate, I considered the views that many people have expressed over the past few months and years.

When the then Lord Advocate, Elish Angiolini, gave evidence to the Scotland Bill Committee, she said:

“there is a real danger that we will have not just harmonisation of our criminal law on procedure and evidence but, indeed, a complete loss of identity for Scots law, unless the Supreme Court process is genuinely rarely exercised and takes place in the context of a matter that is of substantial constitutional significance across the United Kingdom or where there is a very new piece of jurisprudence that is clearly ambiguous.”—[Official Report, Scotland Bill Committee, 8 February 2011; c 479-80.]

I have huge respect for Elish Angiolini, who worked in north-east Scotland before she became Lord Advocate, and I take on board her views in that regard.

I am extremely proud that Scotland has kept an independent legal system. That is quite unusual, in light of the many pressures since the act of union on other institutions that existed in this nation. When I speak to people from elsewhere, it is interesting that they say, “You have an independent legal system. Surely that means that you are independent.” I wish that that were the case. I think that we are seeing a minor attack on our legal system.

In October 2010, the Scottish Law Commission made a submission to the Advocate General for Scotland’s review of devolution issues and acts of the Lord Advocate, in which it said:

“Scots criminal law is a jurisdiction which is not only constitutionally separate from English criminal law. Many of its practices and procedures differ substantially from those of English law. There is no more reason why a particular feature of Scots criminal law need be the same as any feature of English criminal law in order to comply with the requirements of the Convention as there is that any feature of either system should be the same as a feature of Russian law to achieve that purpose ... The European Court of Human Rights has recognised the ... inadvisability of attempting to introduce a ‘one size fits all’ approach to disparate systems of criminal justice.”

Members talked about equality of partnership in the union. Why must certification take place in Northern Ireland, Wales and England but not in Scotland? That is very wrong and shows that some of the parties in the Scottish Parliament do not believe in equality of partnership in the union. Maybe folk need to think about that as we near the referendum.

I watched—in the dead of night—a fascinating BBC 4 documentary on the Supreme Court. I do not think that the court’s membership necessarily reflects society in the UK.

Did the member record the programme? Maybe he could give the recording to George Adam’s auntie, so that she can have a look.

Even if I had recorded the programme and given it to George’s auntie, she would probably be half asleep before the first 10 minutes had passed. Flippancy aside, we are talking about a serious matter. The Supreme Court does not reflect the society that we live in, and the matter needs to be looked at in greater detail.

The opening of the Supreme Court gave us the partnership of Cameron and Clegg, because that event was the first time that they had ever really spoken to each other. In many regards, the Supreme Court has a lot to answer for.

16:23

It is no surprise that the debate has taken the route that it has done. SNP members have displayed their usual sensitivity about London interference and have been overly protective of the Scots identity. Other members have rightly reflected on the genesis of the row. The analyses of Graeme Pearson and Hugh Henry, in particular, were spot on.

The title of the motion, “Ensuring the Integrity of Scots Criminal Law”, is an example of how distorted things get when they are viewed through the prism of nationalism. The measured tones of Kenny MacAskill’s opening speech were in stark contrast to his tawdry language earlier this year, which showed much disrespect to the Supreme Court, its judges and our legal system itself.

It should be a matter of great concern to everyone when ministers who play a role in our judicial system launch attacks on judges and their judgments. Respect for the independence of the judiciary is a fundamental responsibility of Government, so I hope that ministers will take that duty a bit more seriously in the future. I remind Mr MacAskill, who has just returned to the chamber, that it is never too late to say sorry. It was a bit rich to hear members being lectured by Mr MacAskill today on the appropriate demeanour for the debate.

The idea that the independence of Scots law is under threat is simply wrong. The fact remains that only a tiny number of cases every year go to the Supreme Court. The High Court remains Scotland’s highest criminal court. Surely, the main issue that we should be concerned with is not where the Cadder ruling or the Nat Fraser ruling were made; we should be far more worried about the deficiencies—if there are any—in our criminal law and the procedures that are creating doubts over the legitimacy of the convictions in the first place. Those and other recent cases have not been examples of a foreign court imposing itself on Scottish criminal proceedings; rather, they have been a warning that we need to look closely at our body of law and to review exactly how it sits in relation to ECHR responsibilities.

The only time criminal proceedings from Scotland reach the Supreme Court is when there is a devolution issue—typically, when it is alleged that there has been a breach of the ECHR by a Scottish minister. We need to keep the matter in context. In May 2011, Justice pointed out:

“Since the Human Rights Act and the Scotland Act came into force, the Judicial Committee of the Privy Council, and subsequently the Supreme Court, have only heard twenty two cases, of which five were brought by the Crown. This number produced an average of two or three cases a year. ... Of these cases, fourteen were dismissed, limiting the ability of bringing similar points back before the Court. Only eight appeals were allowed, four of which were in favour of the Crown. There is no evidence from these appeals and the judgments handed down that the Supreme Court has extended its jurisdiction or heard cases it ought not to. Indeed it appears to us that the Supreme Court operates entirely within its special jurisdiction, and appropriately respects the position of the High Court of Justiciary.”

That is a quote from a submission by Justice following the Advocate General’s further call for evidence in May 2011.

On the real point of substance, both the Advocate General’s expert group and the McCluskey review group recommend that there remain a right of appeal to the Supreme Court on human rights grounds in Scottish criminal cases.

On certification, there is not only little support for it, but some bemusement about why the matter has been raised at all.

I am, to be frank, astonished by the member’s statement that there is “little support” for certification from Scotland’s highest court to the Supreme Court. Does she believe that the Lord President carries so little weight that she can dismiss his opinion with such comments?

I am not dismissing his opinion with my comments. I am drawing on the fact that the responses to Lord Wallace from the Faculty of Advocates, the Law Commission, the Law Society of Scotland and Justice all said that there is no need for certification and that there is confusion around the matter.

Will the member take an intervention on that point?

No. I would like to make some progress.

It is wrong to draw a comparison with England on the matter because, in the other legal systems in the UK, appeals to the Supreme Court are competent on all aspects of criminal law, evidence and procedure, not just—as in Scotland—on matters that fall within the definition of devolution issues. In the circumstances, the requirement for certification makes sense, given the potential for a large volume of appeals to the Supreme Court.

I am concerned about the idea of raising an issue of general importance. Individuals have rights that are particular to the individual, which should not be assessed against a test of general public importance. If they were, that would result in some people in Scotland being prevented from appealing, which would surely be wrong.

We should all agree that Scots law and its application must be fair and just and must comply with the right to a fair trial. We must never become so insular that we cannot learn from others. The Law Society believes that Scots law should continue to be outward looking and should be able to adopt and adapt ideas from any other jurisdiction if they lead to an improvement in the law in Scotland. I completely concur with that view.

16:29

We last debated the issue on 30 June, following publication of the first report of the review group that was chaired by Lord McCluskey. We now have the benefit of the final report and the opportunity to consider it in the light of the further evidence that was submitted to his group and to Her Majesty’s Government on the details of clause 17 of the Scotland Bill. We also have the evidence that has been, and is in the course of being, presented to the Scotland Bill Committee, which will hear next week from, among others, the Advocate General, the Lord Advocate and Lord McCluskey.

In all that careful examination and detailed consideration, it is interesting to note how the points of difference have narrowed considerably over the past five months. That is to be welcomed. It is also interesting to note that, as is underlined in its final report, Lord McCluskey’s review has wholly endorsed the approach that Her Majesty’s Government has taken and the principles that underpin clause 17. For the avoidance of doubt, and as John Lamont and others said, the McCluskey group has endorsed the proposition that the Supreme Court should retain jurisdiction in respect of appeals in criminal cases from Scotland when they raise questions of compatibility with convention rights.

That is entirely at odds with the position that the First Minister, Mr MacAskill and the Scottish Government initially adopted. Indeed, the McCluskey review’s main critique of clause 17 was not that the proposed grounds of appeal to the Supreme Court were too wide and too intrusive but was, in fact, the exact opposite: it was that they were not wide enough.

Lord McCluskey has said that appeals on convention rights grounds should be permitted not only where the Lord Advocate as prosecutor is alleged to have perpetrated a violation, but where any other public authority involved in the criminal process—such as the courts, the prison service, the police or social services—is alleged to have done so. In fact, he went as far as to suggest that the BBC could be brought within that wider ambit in respect of its reporting of criminal proceedings.

The proposition that the grounds of appeal should be widened in that way has considerable merit, and I understand that the Advocate General is actively considering it. However, that is all a far cry from the position that the SNP Government initially adopted, as evinced by the pig-ignorant pronouncements of the First Minister and Mr MacAskill, which were the subject of such widespread and well-deserved condemnation.

On a point of order, Presiding Officer.

I knew he would say that.

Is it appropriate to refer to “pig-ignorant comments”? Is that proper parliamentary language, Presiding Officer?

No words are proscribed in the Scottish Parliament. I notice that Mr McLetchie referred to the comments, not the member himself, as “pig-ignorant”.

Thank you, Presiding Officer. I have no intention of causing offence to any of Scotland’s pigs or, for that matter, to any other people.

I turn to certification. As I said in my speech on 30 June, the SNP was doing its level best to big up the issue and it is still at it in the motion. Why is that? Certification is the fig leaf to cover up the SNP’s embarrassing retreat on the key points of principle.

I accept that the argument on certification is evenly balanced. I read McCluskey’s report on that point and can see the force of his arguments. I also read the letter from the Lord President, which has been referred to. That certainly deserves our attention and respect, although our High Court of Justiciary has not covered itself in glory over the past year in its assessment of convention rights and our criminal law.

I also read the submissions to the Scotland Bill Committee from the Faculty of Advocates and the Law Society of Scotland, neither of which sees a need to change the present situation or, therefore, to introduce a certification requirement. I can see the strength of their case, which accords with the view of Her Majesty’s Government.

That all demonstrates to me that no side of the argument has a monopoly on legal or constitutional wisdom. It also says to me that the distinguished Scots lawyers who all cherish our legal system certainly do not come to different conclusions because one group wants to do Scotland and Scots law down while another is its sole defender. Both want to serve the interests of justice in general and in the particular case. They simply happen to disagree about how it might best be achieved in the aspect of the judicial process that is in question.

I will make a couple of general points in conclusion. Everyone recognises that the issue of using the devolution minutes procedure has arisen in criminal cases because of the Scotland Act 1998’s provisions and the inclusion of the Lord Advocate and the Solicitor General for Scotland in the category of the Scottish ministers. If the Lord Advocate was not defined as a Scottish minister and that role was confined to the person’s being the head of our prosecution service, the situation in relation to the 1998 act would not have arisen.

We should ask ourselves the fundamental question: is it appropriate for the head of our prosecution service to be a minister in the Government and its principal legal adviser? The Scotland Bill will not change that position. The present and previous Scotland Bill Committees have touched on that matter, which raises a lot of wider constitutional issues. I question whether that duality of roles is sustainable in the long run, irrespective of whether Scotland remains part of the United Kingdom or becomes an independent country.

The cabinet secretary might like to tell us whether the Scottish Government intends to publish its views on whether an independent Scotland would have a Lord Advocate with such a dual role. In an independent Scotland, what would be the relationship between ECHR and Scots law? Would ECHR be incorporated directly into our body of law? Could acts of a Scottish Parliament in an independent Scotland be subject to being reviewed and struck down as being incompatible by a Scottish supreme court? Alternatively, would such a Scottish Parliament remain sovereign in lawmaking in the same way as the UK Parliament remains sovereign under its relationship with ECHR, notwithstanding the Human Rights Act 1998?

Those are big questions, to which we need answers. I trust that the Scottish Government will consider them in a more measured way than the way in which it considered the Supreme Court issue.