Scotland Bill

Lord Cameron of Lochbroom Excerpts

Wednesday 28th March 2012 Lords Chamber

[Lord Sassoon]

My Lords, I hope I can reassure my noble friend that that is exactly what will happen under Amendment 29, because that will require both Governments to provide updates to their respective Parliaments on the implementation of the Bill. If we are not able to give a report that confirms that the criteria envisaged under the Command Paper are accepted by both Governments, that will become clear when we see the first report after the passing of this Bill.

[Lord Cameron of Lochbroom]

Before the Minister sits down, perhaps he could help me. In his answer, he made reference to a tax being an “empty space”. In the Bill, new Section 80B includes,

“a tax of any description”.

Let us assume that this tax is not presently a United Kingdom tax or one that the Scottish Parliament has adopted, but a new tax that could have implications for the United Kingdom. On the point about space, I would have expected that the proposer of the new “tax of any description” would have a clear idea of what he wanted Parliament to provide for it—the shape and mechanics of it, and the rest—all of which would have to meet the Command Paper requirements.

Nowhere in legislation are these criteria set out, yet proposed new subsection (8) of Amendment 16 —which logically should come before proposed new subsection (7)—requires the “additional devolved tax”, this empty space, to comply with the criteria. You can argue that the criteria should be stated first and thereafter the proposal should be shown to be thought through in the context of statutory criteria, rather than leaving it on the basis that the proposals will come forward in the Order in Council and Parliament will not have any indication of why the Scottish Parliament considers it a space that is conclusive of the criteria. I see nothing in Amendment 29 which requires that kind of material to be reported to Parliament in advance of Parliament considering the Order in Council. Perhaps the Minister will explain. His metaphor of the empty space was very apt as the Bill stands.

[Lord Sanderson of Bowden]

Perhaps I may come back to what the noble Lord, Lord Browne, said at the end of his speech. Having his amendment in the Bill would bind the Scottish Parliament to its vote for the whole of this exercise. That is the most important part of this whole business. I cannot for the life of me see why the Government cannot accept it.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I rise to support the amendments to which the noble Lord has spoken, and to speak to the amendments standing in my name and that of my noble and learned friend Lord Boyd of Duncansby. On his behalf, I should first tender his apologies for not being here to speak. Unfortunately, he has commitments that he could not avoid. He would have wanted to be here. He has put a lot of time and investment into this part of the Bill and this issue. He has given me an exhaustive seminar on it and I shall try to do my best to support the amendments which he would otherwise have spoken to.

Could we also offer our congratulations to the noble and learned Lord the Advocate-General for Scotland on achieving this level of agreement and the solution to what was a highly charged political problem in Scotland for a period of time? When it blew up, it was not obvious that it could have been resolved in this way. The extent to which the Minister has found agreement and a resolution to this problem lies in the words of the noble and learned Lord, Lord McCluskey, before he left. He said that he was 98 per cent satisfied.

In all the years I have known him, I cannot imagine the noble and learned Lord being 98 per cent satisfied in relation to almost any argument ever put before him. If he is satisfied to that extent, it is a measure of the achievement of the Minister and his officials. From observing this closely, I know that my noble and learned colleague has put a significant amount of his time and effort into trying to resolve this. I do not intend to speak to any of the amendments that the Minister has spoken to, with the exception of Amendment 52, because the two amendments proposed by the Opposition are attached to their Amendment 52. If noble Lords bear with me, even at this late hour I will try to cover this in a few minutes.

Amendment 52 is a wholly new provision which comes out of the agreement with the Scottish Government, paving the way for the legislative consent Motion. It establishes a review of the new procedures to take place,

“as soon as practicable after the end of three years”.

In principle, we see no difficulty with the concept of a review. It has much to commend it and the Minister set out some of those reasons. However, it is clear from the Written Statement from the Secretary of State, dated 21 March, that the agreement for this review stems from the dispute about whether there should be a requirement for certification of an issue by the High Court as one that raises a point of law of general public importance. Can I say how pleased we are that the Government have resisted the request from the Scottish Government to include certification as part of the package of agreement for the LCM? My noble and learned friend Lord Boyd set out the reasons for our approach in Committee and I do not intend to repeat them here.

More importantly, the clear tenor of the debate in Committee was against certification as a prerequisite for an appeal to the Supreme Court. Those who were present at that debate will recall the cogent and persuasive reasons advanced by the noble and learned Lords, Lord Cullen of Whitekirk and Lord Cameron of Lochbroom, who is in his place today. These were about why such an innovation should not now be made, restricting the right in cases involving the determination of issues of fundamental human rights. Had certification now been included in the agreement it would have been against the wishes of this House.

We appreciate, however, that Scottish Ministers wish to have a commitment to a review of the operation of the new procedures, with the issue of certification being directly addressed in that process. The noble and learned Lord has already alluded to this. If a review is to be meaningful, it must have sufficient evidence to inform it, and it must take into account all sides of the debate. This is where our concerns come in and why we have put down two amendments to Amendment 52.

First, we suggest that the review should be conducted after five years, rather than the three years specified in the amendment. We do not think that three years is long enough for a meaningful review. The Supreme Court took over the jurisdiction of the Judicial Committee of the Privy Council on devolution issues in October 2009. In the approximately two and a half years since then there have been around 12 cases from Scotland. However, seven of those were what have become known as “sons of Cadder”, arising from the case of Cadder on access to a solicitor before a police interview. These seven cases came before the court in two batches as they raised substantially the same issues, so the reality is that of 12 cases, eight arose out of the same issue; namely, access to a lawyer. Our concern is that in conducting a review after only three years there will be insufficient material and an insufficient spread of cases for a proper judgment to be made on the efficacy of the new arrangements. This is a serious issue as the person conducting the review may feel obliged to make findings and recommendations where it would be more prudent to await further information.

Secondly, although this is not in the Bill, the Written Statement made by the Secretary of State states that the review will be chaired by the Lord Justice General, whoever she or he may be at the time. The present Lord Justice General has been making the case for certification on behalf of the Scottish judiciary. We do not, of course, know the identity of the new Lord Justice General, nor do we know what view he or she may form on the evidence. Whoever it is, it seems inevitable that he or she will have been part of the debate on certification among the Scottish judiciary. It is improbable that the new Lord Justice General will not emerge from the existing Scottish judges. Moreover, he or she will have presided over a court whose judgments will have been subject to review by the Supreme Court. His or her opinions may have been overturned and he or she may have been criticised by the Supreme Court in the course of those judgments. This person is then being asked to stand back and conduct an impartial review of the mechanism by which such cases get from his or her court to the Supreme Court. Fundamentally, we do not think this is right. With the best will in the world, even the best jurist will find such a task very difficult and, indeed, may not even welcome such an imposition.

The issue of certification for the Scottish judiciary has arisen out of concerns raised by it about the effect of the Supreme Court on the criminal law in Scotland, and we believe that the new procedures in this Bill go a long way to addressing such concerns. Scottish judges have also seen this as a matter of respect. They point to the fact that in appeals to the Supreme Court from ordinary criminal proceedings from courts in England and Wales and Northern Ireland certification is required from the courts below. They consider that not to require such a certification procedure in appeals from the High Court of Justiciary raises the issue of consistency of approach. However, as the Minister pointed out in Committee, the introduction of certification in the other jurisdictions was, if I remember correctly, to stop what might turn out to be a flood of criminal cases coming from the courts below to the House of Lords. The purpose was wholly different from the issues of respect and consistency that were raised by Scottish judges.

Our amendment addresses these issues. Of course it is right that there should be a senator of the College of Justice intimately involved in the review, but that surely has to be balanced by a view from the Supreme Court itself. That is why we wish to see a commitment that a justice of the Supreme Court will be a member of the review panel to bring the other perspective. I hope that the noble and learned Lord, Lord McCluskey, will forgive me for reporting a private conversation I had with him in the precincts of your Lordships’ Chamber before he left. He suggested, and I agree with him, that it would probably be better if that justice of the Supreme Court was not one of the Scottish justices appointed to the Supreme Court. We on these Benches would very much prefer to see a chairman of the review who had no present involvement with either court, but we know the agreement that has already been reached and, although we think it is wrong, we are prepared to respect it.

I have one question for the Minister, but I hope he will respond to the points that I have raised. I know that he was aware of them in advance because I know there was communication between him and my noble and learned friend. Will the Minister give a commitment that the new Lord Justice General, whoever that might be, will be consulted on whether he or she thinks it is right for him or her to chair this review? If the new Lord Justice General considers that it might be difficult to do that task because of the points that I raised, will the Minister give an assurance that that view will be respected? Will he then work with Scottish Ministers to find a mutually acceptable alternative?

[Lord Cameron of Lochbroom]

My Lords, I pay tribute to the Minister for having listened so obviously to what has been said in all quarters—not least in your Lordships’ House—about these matters. The proposals in these amendments seem entirely reasonable and appropriate, particularly in the light of certain remarks that my noble and learned friend Lord Cullen and I made about the place of the Supreme Court in our judicial system.

Having listened to the noble Lord, Lord Browne of Ladyton, I have sympathy with the view that he has expressed, and indeed the amendment proposed, that the review should be carried out after a longer period than that proposed in Amendment 52. It seems that this is an important review, although apparently not one that will be repeated; therefore, the importance of its conclusions must be based upon a sufficient period to give those conclusions some justifiable basis.

Although the matter of the chairmanship and membership of the review does not appear in the amendment, there is substance in what the noble Lord, Lord Browne, has said about both the chairmanship and the inclusion of one of the Justices of the Supreme Court. I therefore support what he has said in that regard. Otherwise, I pay tribute to the noble and learned Lord for what he has achieved in bringing these amendments forward.

[Lord Wallace of Tankerness]

My Lords, I am very grateful to the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Cameron of Lochbroom, for their general welcome for the position that we have reached with regard to these amendments and the role of the Supreme Court and issues of compatibility in criminal proceedings with European convention rights or European Union law.

I also pay tribute to the noble and learned Lord, Lord Boyd of Duncansby, who not only has made a very constructive contribution to this and other debates on this Bill but was a member of the expert group I set up under the chairmanship of Sir David Edwards; he has been contributing to this debate from a very early stage. I also welcome the 98 per cent satisfaction rate that I seem to have achieved from the noble and learned Lord, Lord McCluskey. I think that is a recognition of the amount of work that has been done by so many people in trying to bring this matter to a satisfactory outcome.

The noble Lord, Lord Browne of Ladyton, is right to recognise that this is part of the agreement that we reached with the Scottish Government. He and the noble and learned Lord, Lord Cameron, asked whether three years was sufficient. The noble Lord, Lord Browne, explained why we had resisted the idea of certification. The comparison with England and Wales was that certification was brought in under the Administration of Justice Act 1960 to stem a flood. If after three years, there have only been five or six cases, that would be a relevant factor to be taken into account; the flood has not happened. Without in any way prejudging any inquiry, the fact that there has not actually been a huge number of cases would have to weigh in to the consideration, if that is how it indeed turns out.

I do not believe that that the composition of the committee and its chairmanship is inappropriate. Many commissions are headed up by a judicial figure. I do not think that to head up a commission with the most senior judicial figure in Scotland is inappropriate, given that one can be assured that a figure of such stature will undoubtedly deploy the judicial qualities which have put him or her into that position. In moving the amendment, I indicated that there will be a number of views. We would expect bodies such as the Lord Advocate, Scottish Ministers, the Scottish courts and the Supreme Court and a number of representative bodies—and the bodies such as have responded to the consultations which I held, including, for example, the Scottish Human Rights Commission, Justice, the Law Society of Scotland and the Faculty of Advocates—to contribute.

We did not seek to put into statute that it should be the Lord Justice General, not least because—in answer to the point made by the noble Lord, Lord Browne—of what would happen if a future Lord Justice General does not want to be involved. When the time comes for the review to be held, should the Lord Justice General at that time not consider that it would be appropriate for him or her to undertake the review, of course the United Kingdom and Scottish Governments would work together to agree an alternative chair for the review.

By the same token, I do not think that we would wish to be constrained by specifying, as the amendment proposes, a Justice of the Supreme Court. For example, a recently retired Justice of the Supreme Court might be an appropriate person—either one from Scotland or one from another part of the United Kingdom. I hear the fair point that someone having had that experience might well be an appropriate person to be a member of the review body but I do not think that it would be appropriate to put that into statute. As I have said, it might not be a currently serving Justice of the Supreme Court but one who nevertheless everyone agrees is an appropriate person to serve.

When the time comes for the review to be set up, I am sure that soundings will be taken as to who would be appropriate to serve on that commission. With these words, I hope that I can reassure the House that the review will properly look at all the issues, not just those of certification but at how time limits have worked. I have no doubt that the issues of certification will be properly aired before that commission as they have been before your Lordships’ House and in the wider legal and public debate.

As this is the last group of amendments, I thank all noble Lords who have taken part in the debates on Report. I believe that in these two days of Report, and in Committee, this House has done what it is intended to do; namely, to give proper scrutiny to the measures brought forward in this Bill. I am very grateful to noble Lords, and to my noble friend Lord Sassoon for helping me in responding. I hope that colleagues in all parts of the House will enjoy and refresh themselves over the Easter Recess before returning to Third Reading.