Scots Criminal Law (Integrity)
Resumed debate.
We resume the debate. Ms Cunningham has about 6 minutes.
16:56
It has been an interesting afternoon, for reasons that turned out to be not all to do with the subject of the debate.
I reiterate the Government’s thanks to the individuals who considered the Supreme Court for us: Lord McCluskey, Sir Gerald Gordon, Charles Stoddart and Professor Neil Walker. They are all figures of considerable experience, expertise and substance and a number of their names are very well known to me—I ought to put it on the record that I am a non-practising member of the Faculty of Advocates, which may be germane to some of what we have been discussing.
There is a bigger issue in this debate, although I realise that I have much less time to discuss it than originally I might have had. The question, which Johann Lamont touched on in her closing remarks, is this: does any legal system anywhere in the world ever get everything 100 per cent right? Of course, the answer to that question is no. Some do better than others, but nobody will ever have a legal system that is 100 per cent right 100 per cent of the time.
In every single system, there will be appeals mechanisms, reversals and things done or not done that turn out not to be ideal. All of us live with that throughout the workings of the process. The question of how that is handled is important in every jurisdiction and the debate falls within that more general discussion, because that is really all that we are talking about.
We in the Government believe that the Scottish legal system should have equal status with others but we fear, rightly, that that equality of status is beginning to be eroded. I pray in aid of that comments that were made in Lord McCluskey’s interim report. He stated:
“This widening of jurisdiction ... had surprised everyone and had created real problems”.
It is therefore not the case that the issue is just made up. Graeme Pearson asked why we are having the debate and why we are discussing the matter in the first place. The issue is, of course, a live one in the Scotland Bill, which is currently going through Westminster, and concerning which we have a committee in this Parliament. Indeed, I remind everyone that the Lord President’s letter, which has been much quoted during the debate, was actually in connection with the Scotland Bill Committee, which he and his colleagues had been invited to attend. This is a very current and pertinent debate, which is on-going in a number of different venues; it is therefore quite right that we debate the issue in the chamber.
It is also important, in regard to other comments that Graeme Pearson made, to point out that, as Kevin Stewart indicated, the Lord Advocate Elish Angiolini herself gave evidence to the Scotland Bill Committee in the previous session of Parliament. It is therefore not true to say that the Lord Advocate has not done that. The new Lord Advocate might not yet have done so, but that is not the same as saying that the Lord Advocate has not done so at all.
In its report, the group made it clear that it has considered the issue within the context of the current devolution settlement, so—hold the front page—from our perspective, that is not something that we want to continue very far into the future. Within those limitations—we regard them as limitations—the report is positive. It recognises that the current system is constitutionally problematic, that the role of the UK Supreme Court needs to be more narrowly defined in relation to Scottish criminal cases, that the role of the High Court of Justiciary at the apex of the Scottish criminal justice system must be protected, and that the current Scotland Bill proposals require significant recasting if they are to be acceptable.
In Lord McCluskey’s rather trenchant words—those who have interacted with Lord McCluskey will recognise that trenchancy—he basically describes them as being constitutionally inept. That is a pretty serious criticism that we must take seriously and not with the measure of disregard that I heard in the chamber this afternoon. The Advocate General’s proposals would remodel the UK Supreme Court as a court of appeal in the Scottish criminal justice system. That is the case, because the proposals would give the Supreme Court full powers to overrule subordinate courts, which in our view is unacceptable.
I would have raised a great many specific points if I had the original amount of time that I was to have.
I can give the minister another couple of minutes.
I must say something about certification, which has been the biggest part of the serious part of the debate. Some members have claimed that certification is not appropriate. I struggle to see how they can take that stand, because it would put Scotland in a completely different set of circumstances to the rest of the UK. How on earth can that be justified? Our High Court would not have authority similar to that of courts elsewhere. We must trust the High Court with that authority, and we must trust it to recognise cases that have points of general public importance—we know that it can do it—and to issue a certificate where appropriate. Annabelle Ewing’s comments on that were absolutely bang on.
I want to point out the corollary to the argument that has been made. If no certification is taking place elsewhere in the UK, the implication of a number of the comments from Opposition members is that the poor people in the rest of the UK are lacking in rights, but I do not hear any great regard for that. I therefore suggest that the position of those members is completely political.
The situation is clear. The experts whom we have asked to consider the issue have pointed the way forward. I hope that in the future the debate will be as constructive as possible, and that people will stop looking at it purely politically and start looking at it in reality, with the criticisms that have been made.