Scotland Bill
Lord McCluskey Excerpts(12 years, 7 months ago)
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Lord Wallace of Tankerness
My Lords, the amendments that I tabled in Committee reflected some of the points made in Committee and the agreement that had been reached between the Government and the Scottish Government to ensure that a legislative consent Motion in support of the Bill was tabled in the Scottish Parliament. The amendments at that stage included provision for compatibility issues to be referred to the higher courts in certain circumstances to allow these issues to be dealt with quickly.
On Report, I said that I was still considering whether the law officers should be able to refer certain compatibility issues to the Supreme Court without the permission of the High Court, and what the role of the High Court should be. I also indicated that I would continue to discuss these matters with the Lord Advocate.
The amendments that I have tabled extend the powers of the law officers and allow certain compatibility issues to be ultimately considered by the Supreme Court where the law officers consider it appropriate to do so. The Lord Advocate is content with these amendments.
Clause 35 already makes provision for the law officers to require a lower court to refer a compatibility issue to the High Court. This can be done before the trial is concluded. On receiving the referral, the High Court can either decide the compatibility issue itself or refer it to the Supreme Court. We expect the High Court, in making this decision, to take account of the views of the law officers.
Amendment 9 ensures that if the High Court decides to determine the compatibility issue itself, then the law officers will have a right to appeal the compatibility issue to the Supreme Court once it has been determined by the High Court. In these circumstances, the law officers will not need the permission of the High Court or the Supreme Court to appeal. This means that where one of the law officers refers a compatibility issue to the High Court then either law officer can ensure that the issue is ultimately considered by the Supreme Court, should the High Court decide to look at the issue itself.
In addition the Bill already allows the High Court to refer a compatibility issue to the Supreme Court, where the compatibility issue has not been referred to it by a lower court and the High Court is considering the issue on an appeal. Amendment 8 extends this power, by allowing the law officers to require the High Court to refer the compatibility issue to the Supreme Court. Law officers can only do this if the compatibility issue has not been referred to the High Court by a lower court, and the High Court is considering the issue on an appeal. Referring the issue will enable the Supreme Court to decide on it earlier, which will be helpful where the compatibility issue will have implications for other cases. These amendments improve the Bill and enable compatibility issues to reach the Supreme Court more quickly, where this is appropriate, while respecting the importance of the role of the High Court in relation to these issues.
As I said in our earlier debates, we have come a long way in reaching agreement on the role of the Supreme Court in Scottish criminal proceedings, and I am grateful for the contributions made to the debate, including those made by the expert group that I set up chaired by Sir David Edward, by the review group led by the noble and learned Lord, Lord McCluskey, and by other members of your Lordships’ House. I trust that all who have been involved in this work consider that the provisions in the Bill will result in improvements to the way in which convention and European Union law issues are dealt with in Scottish criminal proceedings. I beg to move.
Lord McCluskey
My Lords, I welcome both Amendment 8 and Amendment 9, which, I understand, are being taken together. As for Amendment 8, I wrote to the noble and learned Lord the Attorney-General for Scotland some time ago suggesting that this would be an appropriate power to be included in the Criminal Procedure (Scotland) Act 1995. My view, which he has echoed, is that this power, used when thought necessary, could sometimes be useful to speed up cases going through the courts. It is clear that the two law officers, the Advocate-General and the Lord Advocate, can be trusted to use this power only in circumstances where it would serve the interests of justice, namely by preventing delay.
I believe I understand the purpose of this amendment and of Amendment 9, but could the noble and learned Lord explain one or two matters? The first is the exception made in the words that conclude Amendment 8,
“otherwise than on a reference” .
Could he explain precisely the purpose of those words? The second point relates to Amendment 9, to Clause 36. This disapplies subsection (5) to certain appeals taken by either of the two law officers. Why is this particular subsection disapplied? The answers will assist those practitioners who may have been confused by the considerable changes that have taken place, both in the Bill itself initially, and in the proceedings in this House to what is now Part 4 of the Bill.
Would the noble and learned Lord also explain under what circumstances and at whose instance a criminal case might be referred to the Supreme Court before the stage at which the facts of the case have finally been determined, and before the case itself has been finally determined by the court below? May I ask in particular, with regard to the commencement provisions in this Bill, when it is envisaged that Part 4 of the new Act will be brought into force? In asking that, I recognise that the Lord Justice-General—the Lord President—will have a considerable amount of work to do in preparing an act or acts of adjournal to cover the new matters. I have no doubt that he will have to consult widely on that; however, I hope that it could be done within months, rather than in any longer period. When is it envisaged that Part 4 will be brought into force?
I made an error in speaking to the Committee some time ago. I referred at that stage to the judges who had been consulted by the noble Lord, Lord Hamilton, before he put in his written representations. I mentioned that one of them was the noble and learned Lord, Lord Phillips of Worth Matravers. In fact, the two judges referred to were the Lord Chief Justice of England, the noble and learned Lord, Lord Judge, and the Lord Chief Justice of Northern Ireland, Sir Declan Morgan. I apologise to the noble and learned Lord, Lord Phillips, for that mistake.
Finally, I express my thanks to the Advocate-General for Scotland for the very careful and considerate way in which he has dealt throughout with the Bill and all the representations he has received. Two groups made a considerable contribution to the shape of the Bill and I shall mention them in a moment. The Advocate-General said that he would listen, which he undoubtedly did. He also made judgments with which I am happy to say that I agree. The two bodies are those mentioned by him. The group led by Sir David Edward, known as the expert group, made a substantial contribution to analysing the problems. Secondly, there was the group of experts that I had the honour to chair. We could not call ourselves the expert group because that name had already been appropriated by Sir David Edward’s group, so we called ourselves “the Supremes”. However, we kept that name to ourselves for reasons of modesty and to avoid confusion with the pop group of the same name. Between us and with the help of others in your Lordships’ House, we now have in the Bill a scheme for appeals on human rights issues in criminal cases in Scotland in the Supreme Court, and for other compatibility issues, that is greatly superior to the one that somehow found its way unannounced into the Scotland Act 1998. Time will show whether I am right.
Lord Browne of Ladyton
My Lords, for the reasons set out in his initial remarks by the noble and learned Lord, Lord McCluskey, I also support these amendments. They improve the provisions of the Bill, to which my noble and learned friend Lord Boyd of Duncansby has made a significant contribution over time, as have those others mentioned by the noble and learned Lord, Lord McCluskey. I understand that the exercise of a power of this nature has proved beneficial in the past to the administration of justice in Scotland and that it would be to the detriment of the powers if it were not included in the provisions of the Bill.
Lord McCluskey
Before the noble and learned Lord sits down, will he reflect on this debate and draw the attention of his colleagues in government to the fact that the considerable improvements that have been made to the criminal justice appeals system in Scotland were achieved in a Bill discussed in this House by unelected Members who made all the necessary changes, including those that he made? There is perhaps a lesson there for those who are considering what changes to make to the constitution and powers of this House.
Lord Wallace of Tankerness
The noble and learned Lord is, I suspect, going slightly wider than the Bill, but I am sure there will be many lessons learnt from the way that the Bill has progressed—not least the way in which we have dealt with it. I pay tribute to those within your Lordships’ House who have contributed in debates and representations, as well as to others outside your Lordships’ House who have contributed too. What we have at the end is something worth while, given that some months ago we did not have the easiest circumstances. I obviously wish to confirm that although the group that I set up was referred to as the expert group, that in no way detracts from the expertise of the group chaired by the noble and learned Lord, Lord McCluskey. I was very conscious that when he, along with Professor Sir Gerald Gordon and Sheriff Charles Stoddart, came to see me, I was in the presence of the two people who had taught me criminal law in the late 1970s. I certainly listened very carefully to what they and the noble and learned Lord said, and I am pleased that the position we have reached appears to command support across the House. I therefore commend the amendment.
Scotland Bill
Lord McCluskey Excerpts(12 years, 8 months ago)
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Lord Forsyth of Drumlean
I think that the noble Lord intervened before I sat down. I do agree with that. The next inquiry of the Economic Affairs Committee of this House, of which I am a member, as the noble Lord will be aware, will be into the economic impact of independence on the United Kingdom as a whole. I agree that many economists can contribute to that in an informed and objective way. I think that the committee will produce some very interesting material as a result.
Lord McCluskey
In addition to economic and legal aspects—many different opinions have been expressed publicly by members of the Scottish Government and the United Kingdom Government—I wonder whether the noble Lord has considered legal matters such as the right of Scotland or the ability of Scotland, if independent, to join the European Union or to retain the pound and matters of that kind. Does he think it is advisable that, in addition to a committee of experts such as the noble Lord, Lord Gordon of Strathblane, has mentioned, there should be from this House a committee including lawyers and experts who can offer independent advice on such questions?
Lord Sanderson of Bowden
My Lords, I assume that my noble friend had serious reservations about the terms of Section 30 being agreed with the First Minister. After all, in recent press comments, the First Minister has said, “Will you please leave this all to us in Scotland and we will organise the referendum as we want it?”. I send good wishes to those from the Government who will carry out these vital negotiations but the questions that have to be settled are so important. I support my noble friend in saying that, if we do not get what we want on the question or any of the other important issues, we must have a chance to deal with it at Westminster.
I know that my noble and learned friend when he comes to reply will say, “Oh, but this amendment is not for the face of the Bill”, which I accept. But I believe that he has to give us some sort of undertaking that the very matters which my noble friend Lord Forsyth has raised in this amendment are dealt with and that we will get full and frank discussion of what is involved in this whole exercise.
Scotland Bill
Lord McCluskey Excerpts(12 years, 10 months ago)
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Lord McCluskey
My Lords, this debate is scheduled to finish at 7 pm, which gives us slightly over two hours. That is unfortunate because on a Thursday afternoon, particularly when the House does not sit on the Friday, there are few Scots to be found after this hour, and I fear that even some of those who are smiling at me now will shortly depart for trains and planes to take them north to what no doubt is important business. I have tried to make my contribution by withdrawing 12 of the amendments I had down on the Marshalled List before the debate today, but it is a pity that we lost an hour at the beginning of the day to the debate occasioned by the Leader of the House having to deal with issues of privilege in another place.
I am quite certain that we are all agreed that Clause 17 will have to go, so I need not spend too much time on the detail, but I want to say something about the background. Unfortunately, because of the grouping of the amendments, for what I understand are good technical reasons, we have to deal with a large number of quite different matters all at the same time, so I am afraid that I shall have to rise to my feet more than once in order to make separate submissions in relation to several different matters.
Clause 17 was added in another place at the Report stage. No explanation about it was given at that point, although the Minister and the Opposition said a few words a little later at Third Reading. The history of the matter is this. The Scottish judiciary first raised issues in relation to the exercise by the Supreme Court of its jurisdiction, which had been conferred in a late provision that was added to the Scotland Act 1998. Calman did not deal with it, but the Advocate-General for Scotland wisely appointed an expert committee under Sir David Edward and others, including the noble and learned Lord, Lord Boyd, to deal with the matter. The committee went on to produce an excellent report so far as it went—I believe that we came to a logically better conclusion than can be shown in Clause 17, and I think the Minister accepts at least some of the points that have been made in relation to that.
The Report stage to which I have referred was taken on 22 June or thereabouts. The first report of the review group, which I had the honour to chair, was published on 24 June, so at that point we had had no opportunity to comment on the clause. I had a group of very distinguished people under my chairmanship: you could not have a more learned lawyer in the law in Scotland today than Sir Gerald Gordon, who is the finest scholar of Scots law probably for centuries; Charles Stoddart has massive experience as an author and as director of judicial training in Scotland; and Professor Neil Walker has an international reputation on constitutional law and practice. Perhaps I may say for clarification that when the First Minister asked me to chair the group, he started to say that he would give me the names of the people who would join it. I said, “No, I will give you the names”, and I proceeded to give him these names apart from that of Professor Walker, whom I did not know. The First Minister said, “May I suggest Professor Walker?” and I said, “Give me 24 hours and I will say yes or no”. I looked into Professor Walker’s background and consulted my colleagues, and we decided that he would be a valuable member of the group, which indeed he proved to be.
We had no axe to grind whatever. We almost resigned over the appalling remarks made by the First Minister and the Secretary for Justice about the Supreme Court justices at the time, but we decided that it was our duty to do our best because, while that row would pass, these provisions might last for a very long time.
We had only three weeks to produce our first report, and at that stage we could not consult widely. However, we had until mid-September to produce our second report and we then did consult widely. We put the tentative conclusions we had reached in the first report out to consultation and we met with many parties. The report is now available on the Government website, and it makes it clear that many people responded to us. A number of interviews are reproduced. I personally met with a number of senior judges in Scotland, and on more than one occasion with the Advocate-General. He was always courteous enough to listen with great care to what we had to say and, indeed, to respond positively to a number of things.
Lord McCluskey
On a point of order, I understood from our grouping notice this morning that we were going to discuss not just clause 17 stand part but Amendments 71 and 72 by the Advocate-General and the amendments to those amendments standing in my name.
Lord Wallace of Tankerness
My Lords, if I can assist here, my understanding is the same as that of the noble and learned Lord, Lord McCluskey. I think that I said when I opened my remarks setting out my amendments that I was seeking not to wind up the debate but, if anything, to open it. There are important issues to be discussed, if it is possible to rewind so that we can have a debate on the amendments. There is an agreement that clause stand part should not take place.
Earl Attlee
My Lords, if I may help the Committee, we cannot go backwards on the Marshalled List. We have decided that Clause 17 will not be part of the Bill.
Lord McCluskey
With respect, we are not going back on that: Clause 17 goes out. However, in the same grouping we have the right to discuss the new Amendments 71 and 72, although we cannot move those until we reach that part of the Bill on another day, but because they all raise the same issues the grouping that was arrived at allowed for us to discuss these after dealing with the clause stand part debate. Clause 17 goes out and no one seeks to change that, but we now need to look at Amendments 71 and 72 and the amendments proposed to those amendments.
Earl Attlee
My Lords, it may be helpful if I tell the noble and learned Lord that he has not lost the opportunity to speak to those amendments, but he will have to do so when they come up on the Marshalled List. He had the opportunity to speak to the amendments after my noble friend the Minister had spoken. However, the noble and learned Lord chose not to take that opportunity. The Question was put and has been decided, but I emphasise that the noble and learned Lord has not lost the opportunity to speak to the amendments in their place in the Marshalled List.
Baroness Rawlings
My Lords, we have put the Question on Clause 17 prematurely. I suggest that we continue the debate.
Lord McCluskey
My Lords, I am very grateful to the authorities and the noble Lord in the Chair in connection with this matter. I think we should deal with the amendments but I wonder whether the noble and learned Lord the Advocate-General would like to deal with Amendment 71 before I deal with the amendments to that amendment. Would that not be the proper way to proceed?
Lord Wallace of Tankerness
My Lords, obviously, I am not formally moving the relevant amendments because we have not yet come to them but I think that I tried to deal with the content and the structure which we wished to achieve through the amendments. Although I cannot formally move them yet, I think that I have spoken to the substance of them and it might take the debate forward if the noble and learned Lord now makes his response.
Lord McCluskey
My Lords, I am perfectly happy to do that. Amendment 71A, which stands in my name, refers to line 11 of government Amendment 71 and proposes to insert the words,
“in the course of criminal proceedings”.
I want to emphasise that we are generally happy with the approach of Amendment 71: at least I am because I am happy that it deals with the Criminal Procedure (Scotland) Act 1995 rather than the 1998 Act—a point which I made earlier. However, the heading of the new clause, which is in bold on the Marshalled List, states:
“Convention rights and EU law: role of Advocate General in relation to criminal proceedings”.
First, I accept that we should deal with EU law as well as ECHR law, although our report did not find it necessary to go into that matter at all. This relates to criminal proceedings. The whole point is that Amendment 71 relates to the Criminal Procedure (Scotland) Act 1995, and we are making provisions in subsection (3) on:
“Right of Advocate General to take part in proceedings”.
I believe that that should read, “take part in criminal proceedings”, for a reason that I shall come to shortly. The provision states, in terms, that:
“The Advocate General … may take part as a party in criminal proceedings so far as they relate to a compatibility issue”.
The compatibility issue is defined here for the purposes of all the proposed new sections, including those that I am proposing.
Subsection (2) of proposed new Section 288ZA states:
“In this section ‘compatibility issue’ means a question whether a public authority has acted (or proposes to act)”
in the way specified in proposed new paragraphs (a) and (b). Again, we ought, for clarity to insert the words, “in the course of criminal proceedings”. They merely add something that is perfectly obvious, but they have a bearing on the important issue as to whether or not questions arising in criminal proceedings might be treated as vires issues in the way mentioned by the noble and learned Lord when he was speaking a moment ago.
Therefore, my next amendment proposes to insert after “whether”:
“an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is outside the legislative competence of the Parliament as being incompatible”.
This is an important issue because the Advocate-General has very properly decided that there should be an amendment to paragraph 1 of Schedule 6 to the 1998 Act. That change appears in the new clause proposed in Amendment 72. Subsection (3) states:
“In paragraph 1 of Schedule 6 …after sub-paragraph (f) insert—‘But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act”.
When one looks at that provision in subsection (2) of the new section proposed in Amendment 71, we find that a compatibility issue includes,
“whether a public authority has acted (or proposes to act) … in a way which is made unlawful by section 6(1)”.
I may be wrong about this, and I hope to hear the noble and learned Lord’s reply, but if a Member of the Scottish Parliament—particularly a Member of the Government—proposes a Bill in the Scottish Parliament that will breach a convention right, as specified in Section 6(1) of the Human Rights Act 1998, that is unlawful. Therefore, under the proposed new clause in Amendment 72, from which I quoted a moment ago, a question arising in criminal proceedings is not a devolution issue, if it is a compatibility issue within that meaning. The result is, I think—although I may be wrong, because this is difficult to follow—that if, in the course of a criminal trial, assuming that the noble and learned Lord’s amendments on these matters are accepted, a person states, “The Act under which I have prosecuted or which has a bearing upon the prosecution is beyond the competence of the Parliament”, it will instantly become a compatibility issue that is not a devolution issue. Therefore, the alternative route of using the vires provisions under Schedule 6, to which the Advocate-General refers, will not be available to anyone. In other words, there is only one route to take, which is what I want to happen.
On 17 January, the Advocate-General said to me in a letter, and repeated today:
“I am not minded to accept the Lord Advocate’s suggestion”—
a suggestion made by the Lord Advocate before the committee at which I spoke—
“that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with ECHR or EU law. The suggestion would mean that if someone wishes to argue that an ASP is incompatible with the ECHR and that it also relates to reserved matters they would need to use the new appeal route in relation to the ECHR issue as well as the existing devolution issues appeal route”.
I think that his amendments knocked out the devolution issue and have given us what we want, but I would be interested to hear his view on that and whether there has been some confusion on the matter.
The other amendment which I should mention in this context bears on proposed new Section 288ZA in Amendment 71, where I propose to add in subsection (2),
“references to the course of criminal proceedings are to the period beginning with the detention or arrest of a person for an offence and ending with the pronouncing of the final interlocutor”.
The reason for that highly technical amendment is that it is possible that, before a person is detained or arrested, there might be by a public authority—whether the police or the BBC, for example—an invasion of his human right to a fair trial by saying things about the accused even before he is detained. We may need to look at that separately, but the amendment draws attention to the fact that there ought to be a definition as to when criminal proceedings begin in the Act, so as to leave it in no doubt. There have been difficult questions in past cases about when a person is charged, when he is detained, et cetera. Those words themselves are not crystal clear, but I want to make it crystal clear when criminal proceedings begin and when, for the purposes of compatibility issues, they end. That matter is covered by my Amendments 71A to 71C, which draw attention to what I think are problems arising from the framing of Amendment 71, which proposes the new clause.
Lord Boyd of Duncansby
I must say that I am somewhat confused as to where we are on all this and whether, for example, I have now to address the issue of certification. I am not entirely clear whether the noble and learned Lord, Lord McCluskey, has yet to address that issue.
However, first, as the noble and learned Lord observed, I was a member of the Advocate-General’s expert group looking at the issue of the jurisdiction of the Supreme Court. We welcome the progress that has been made by the noble and learned Lord and reflected in the government amendments. The expert group recommended that the jurisdiction of the Supreme Court should continue and should be focused on the role of the prosecutor, but that convention compliance in criminal should be outwith the jurisdiction or ambit of Section 57(2).
Lord McCluskey
I did not speak to that amendment. I agree that it may not be entirely necessary. However, as the noble and learned Lord knows, many a time have we put something in statute to make a clear point. Because there has been debate, including among lawyers, about whether the High Court of Justiciary is the final court except in relation to compatibility issues, there is something to be said for putting this in the Bill. I felt that that would be a way to do it. That was why I tabled the amendment. The intention was to underline a point that is implicit elsewhere in the Act and, as the noble and learned Lord said, is stated expressly in other Acts.
Lord Boyd of Duncansby
I am grateful to the noble and learned Lord for that. On the broad issue of references to the High Court and Supreme Court by the Lord Advocate and Advocate-General for Scotland, I will reserve my position and consider the matter in more detail. When I was Lord Advocate, I always thought that the opportunity for doing was important. I believe that I did it once. I also take the point made by the noble and learned Lord the Advocate-General that there may be issues around whether it would be better if any of the parties could ask the court to do this. I will consider that before Report. I think that I have dealt with most of the issues. Given the wide-ranging nature of the amendments in this group, I may have missed something. However, I hope I picked up on all the necessary points.
Baroness Rawlings
My Lords, perhaps I may tell all noble Lords that they should feel free to comment on any amendments on the Marshalled List that relate to Clause 17.
Lord McCluskey
My Lords, I will comment in greater detail on the matter of certification. The lawyers among us will recognise that it arises in relation to various amendments, including Amendments 72B, 72C and 72D. The report of the review group that I chaired deals with the matter in paragraphs 35 onwards. No doubt the noble and learned Lord the Advocate-General has had a careful look at what was said there. We are dealing with a point of law of general public importance. The noble and learned Lord, Lord Boyd, referred to the philosophical objection: namely, that a court can prevent an appeal against its own decision. That is fairly common. However, in this case the English Court of Criminal Appeal, having considered that very matter, said that it did not arise because the issue of whether a case raises a point of law of general public importance is not the issue that was decided in the appeal. That empowers the Court of Appeal in England to prevent an appeal to the Supreme Court, but in various cases in England, the Court of Appeal and others have upheld that particular right on the ground that there must be a filter. I could refer your Lordships to some detail, but I shall not go into detail on that matter at this late hour.
In other words, the point to be considered is a point of law of general public importance, a different point from that considered in the appeal. Mention has been made of the case of Cadder in which leave was refused, but I am assured by judges who took part in that case and others that there can be no question that if someone had said to the court that that case raised a point of law of general public importance, the judges would have said that it did and a certificate would have been granted. Of course, there was no occasion to consider that because there was no law in Scotland requiring that to be done. The whole matter has been looked at in great detail in the English Court of Appeal and elsewhere in England, and your Lordships will find a very useful summary of the law in an article by CJS Knight in the Law Quarterly Review 2011 “Second criminal appeals and the requirement of certification”. I shall not read excerpts from that tonight because there is not really time.
Bearing in mind that the High Court of Justiciary has always been responsible for deciding all matters of substance, the only thing that changed in 1998 was the introduction of a new ground of appeal. That is what I said earlier, but I repeat it. Plainly, when the English and, indeed, the Northern Irish considered whether certification should apply to that, they decided implicitly that it would continue to apply there, so why should Scottish judges not be trusted to make the same judgment that is made in Northern Ireland and in the Court of Appeal Criminal Division in England about whether a case raises a point of law of general public importance? It is, in effect, to demean the Scottish judiciary to say that they cannot detach themselves sufficiently from the case in order to make that judgment.
Noble Lords who followed the history of this matter in more detail than I would recommend will know that we raised this question when we put the matter out for consultation between our first and second reports, and nobody suggested that there was anything wrong with the court deciding whether to consider leave to appeal from its own decision. That largely covers the same point.
I ought to deal with some of the objections. First, there is the objection which is the principal one taken by Sir David Edward and some of the members of this Committee subsequent to our report. It was that in England no certification is required for habeas corpus. We do not have habeas corpus in Scotland. We have our own rules and, in any event, we are bound by Article 5. If one wanted to introduce an exception to the rule for certification, it would be easy to do so under reference to Article 5. There are other minor things in relation to contempt of court and courts martial. I have no objection to a list of exceptions which would mirror those in England, except in relation to habeas corpus, which, as I have said, would be dealt with differently.
It is very important to take account of and to give full and proper weight to the written representation by the Lord Justice General. So far as I can tell, it has never been done before. The Lord Justice General thought very carefully and hard, and he decided to make these representations. Furthermore, he consulted the noble and learned Lord, Lord Judge, and he also consulted the noble and learned Lord, Lord Phillips of Worth Matravers, if I recall correctly, and they said that the certification created no problem in England for the courts for which they were responsible. The Lord Advocate and the Scottish Government support our position on this, and the Scotland Bill Committee of Members of the Scottish Parliament also supported it. Indeed, Paul McBride, who was a member of Sir David Edward’s group, has specifically decided to support it and said so to that Committee.
The objections taken by others have been mentioned by the noble and learned Lord—for example, the Law Society and the Faculty of Advocates—but they were barking up a tree which no longer has the branch on which they were endeavouring to sit; namely, that the matter is no longer a devolution issue if it arises in the course of criminal proceedings. Therefore, the idea that because devolution issues are taken to the Supreme Court without permission in other parts of the United Kingdom no longer has any validity. Therefore, in my submission to your Lordships, the reasoning on that is not sound.
If certification and leave are granted in England and Wales, the Supreme Court considers the point of law and then deals with it and any other matters necessary to decide the appeal. That is exactly what we propose. I remind your Lordships of what was said by the Lord Justice General in the written submission—if I can get my iPad to remind me of what I have on it. He said in terms that this issue relates to,
“the appropriate relationship between an intermediate court of criminal appeal (such as the High Court … in its appellate capacity) and a further court of appeal (such as the Supreme Court)”.
He goes on to discuss that in some detail. He said that the English provision has recently been held to be “Convention compliant” in the case of Dunn in 2010. He adds:
“From conversation with the current Lord Chief Justice of England and Wales (Lord Judge) and with the current Lord Chief Justice of Northern Ireland (Sir Declan Morgan) I understand that each of them finds the certification requirement to be valuable and, so far as I am aware, it raises no difficulties in practice”.
At paragraph 13 of the written submission, he mentions that it would have “value for Scotland” and, in particular, that there is no reason why we should be different from England in relation to that. Perhaps I may remind your Lordships of the quotations that I gave from House of Commons Hansard of 21 June 2011 from Ministers who envisage that the regime should be the same on both sides of the border in relation to the Supreme Court.
On the very important point made by the noble and learned Lord, Lord Boyd, the Lord Justice General said:
“The consideration of applications for a certificate would be a new responsibility for the judges of the High Court. But there is every reason to suppose that, like their colleagues in the other jurisdictions in the United Kingdom, they would act reasonably and responsibly”.
I remain of the view that the relevant amendment should be considered further by the Minister and the noble and learned Lord, Lord Boyd, but we will not reach it today because it is way down the list. However, I am certainly reserving my position. After today’s debate, if I can overcome the confusions which are partly my responsibility, I intend to put down amendments for Report in order to ensure that the matters still outstanding are more fully debated. I would express the hope to the House authorities that on that occasion we will not be sitting late on a Thursday afternoon when the Scots have gone home—sent homeward to fight again is the expression that we will be hearing on Saturday afternoon in a different context. They have gone home, which is a great pity because, although this is not the most important matter since the fall of the Berlin Wall, none the less it is an important matter in this context. I remind the noble and learned Lord of what I have said to him, and I think that he agrees with me. This is not just for Christmas; it is for a very long time. It may be many years before this legislation is looked at again, so I hope that it will be looked at very thoroughly in this context.
As far as I am concerned, that deals with certification and I will return to the other matters in a moment or two.
“an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time”.
So one must ask: is there a need for a certificate from the Appeal Court? The main argument presented by the noble and learned Lord, Lord McCluskey, is that it is necessary in order to achieve consistency or parity with the position in England, Wales and Northern Ireland. But, as the noble and learned Lord, Lord Boyd, has said, is this comparing like with like? The Appeal Courts in those other jurisdictions may be asked to sanction appeals to the Supreme Court on a wide variety of issues concerned with any aspect of criminal law and procedure. In the case of Scotland, on the other hand, the Supreme Court has a special jurisdiction to deal with issues confined to alleged breaches of human rights, and it is for this reason that the group under Sir David Edward rejected any attempt to draw a parallel. The group confirmed that this was the case when responding to questions from the review group under the noble and learned Lord, Lord McCluskey.
Lord Cameron of Lochbroom
I shall speak briefly because I look at the matter not in particular detail but, like the noble and learned Lord, Lord Boyd, from a philosophical view. Scottish criminal law and procedure has developed in an entirely different way from that in the other jurisdictions in the United Kingdom, but it has now had placed above it a Supreme Court with a particular mandate. It seems to me that that is the court which at the end of the day can determine whether what is being brought before it, whether with leave or without it, is a matter with which it should be concerned, looking to its universal jurisdiction in order to provide consistency in a very special area of law.
That being so, notwithstanding my having no reason to doubt that in general the court below will be capable of determining whether a point of public law importance arises, there are special cases where that might not be perceived by the court below and no harm is done by leaving out the certification procedure which is available in a different form in the way of leave, and by adopting the path in these matters suggested by the noble and learned Lord the Advocate-General.
I do not intend to deal with any of the other matters, because this seems to me the real nub point in the relationship between the High Court of Justiciary and the Supreme Court which arises out of the other amendments which have been proposed.
Lord McCluskey
I hope that this will be the last time that I rise to my feet in this part of the debate. I shall endeavour by Report to formulate one amendment on matters relating to certification so that we can address this topic more fully than we have been able to do today.
Perhaps I may turn in the mean time to Amendment 72C and, linked with it, Amendment 72H. After “only”, Amendment 72C would insert,
“after the final determination of the proceedings, except with the permission of the High Court under subsection (5C)”.
That subsection relates to proposed new Section 288AB and references before the finality of the proceedings. In the normal case, the judgment that is required to be made under Article 6, which is the most important article bearing upon these issues, is whether the appellant— the accused or convicted person—has been deprived of a fair trial. The courts in Strasbourg, England and Edinburgh have repeatedly said that you judge the question of the fairness of the trial in the light of the whole circumstances. That is why I suggest that normally the appeal should take place at the end of the proceedings in the High Court and not before. That has the advantage that it avoids delay in the middle of proceedings of an unnecessary kind.
There have to be exceptions. The most obvious example is an issue such as the temporary sheriffs case, where it is independent of the facts of the case. It is an issue as to whether or not the court is an independent tribunal. There have been other cases of that general character. The court could make an exception there and we can surely trust it to do so. But the idea is that no appeal goes before the proceedings have been finalised in the High Court.
Amendment 72H deals with an issue related to that but also related more to the fact that the court can send it away ex proprio motu if it decides that that would further the interests of justice. The amendment relates to the fact that the Lord Advocate or Advocate-General may require the High Court to refer a compatibility issue to the Supreme Court for determination. That appears to be again on a par with the court deciding that the interests of justice require this issue to be decided if it can be decided without reference to the facts of the case. The Lord Advocate in particular—I am sure that others in the Committee could confirm this—may well have knowledge of the consequences of a particular decision going a particular way. He may be anxious to get these consequences ventilated and the decision made because there may be hundreds or even thousands of cases pending the decision. I very much want to see that the Lord Advocate has this power.
I am sure that it would be exercised responsibly. There is no reason to suppose that the Lord Advocate would exercise it irresponsibly and I am sure that it will be confined to those cases where it is clear that the matter is independent of the fairness of the trial on the facts or the conduct of the trial itself. Rather, it is dependent on an issue that lies outside the trial.
Amendments 72F and 72G relate to the possible extension of the 28-day period. In my submission, once a case has been through the High Court before a judge and jury or before the Sheriff Court and then it goes to the High Court of Justiciary sitting as an Appeal Court, one would have thought that by that stage all the issues had been properly identified. Therefore, 28 days is long enough to allow an appellant to formulate his grounds of appeal. That is why I do not see the need for a longer period for the High Court, having regard to all the circumstances. That is contained in the amendment of the Advocate-General. I wanted to delete that proposed new subsection and also the one relating to a similar power in the Supreme Court.
It is important to bear in mind that under the European Convention on Human Rights and the Human Rights Act the victim is usually the accused person, whereas the injured person or the relatives of the deceased person are not victims at all. But in truth and public understanding, the real victims of crime are those who have suffered from the crime. They want to see cases finished as quickly as possible. Therefore the possibility that the Supreme Court or the High Court may take weeks or months to decide a matter and then allow an appeal is abhorrent to the general public. I submit that the Government should consider very carefully accepting my amendments to the new clause proposed in Amendment 72 and restrict the period to 28 days.
Lord Wallace of Tankerness
My Lords, first of all I thank all the noble Lords—noble and learned Lords—who have taken part. We may be small in number, but we have two former Lord Advocates, a former Solicitor-General and Senator of the College of Justice, and a former Lord Justice General. The experience that has been brought to bear on the issues has been quite considerable. We even have a member of the jury in my noble friend Lord Maclennan.
In retrospect it would have been easier if we could have had a more focused debate, but it is quite clear that we are going to return to this matter on Report and I certainly take on board the points that have been made. The grouping was intended to allow for a full discussion on this issue and all the different points in relation to it. I will certainly give consideration, through the usual channels, as to how we might group the amendments on Report so that we have some quite focused debate, particularly on the point of certification, which is possibly the most important point at issue.
I will come on to certification in a moment, but will briefly respond to some of the other points raised, particularly by the noble and learned Lord, Lord McCluskey. He indicated that he had tabled Amendment 71A to insert the words,
“in the course of criminal proceedings”.
The amendment amends the proposed new Section 288ZA(2) to do this. We believe that our amendment inserting Section 288ZA(1) makes clear that the new appeal route only arises in the context of criminal proceedings, but I did listen to what the noble and learned Lord said. There may be some ambiguity or lack of sufficient clarity, and I will certainly want to look at this. I have looked at drafts at various times and I do accept that it is sometimes difficult when you are trying to import things into a different Act to make sure that it is right. I will look at the particular point that he raised there.
With regard to the noble and learned Lord’s point about defining “criminal proceedings”, the term “criminal proceedings” is already used in the Criminal Procedure (Scotland) Act 1995, and we are therefore content that no definition is required. Indeed, inserting a definition just in relation to these particular provisions may inadvertently cast doubt on the meaning of the term when it is applied to other provisions of the 1995 Act. Therefore, to ensure consistency throughout the Act, we felt that particular amendment would not be necessary.
The noble and learned Lord, Lord McCluskey, asked whether there would be a compatibility issue if an Act of the Scottish Parliament was introduced by an MSP in breach of Article 6. It is important to point out that introducing legislation in itself does not change the law and would not be incompatible with the convention. It is only when the Bill is passed that the issue of a possible breach of Section 29 of the Scotland Act would arise. At that point, a challenge to an Act of the Scottish Parliament would be a devolution issue. However, I think that the noble and learned Lord, Lord Boyd, indicated that we had made it clear—and the noble and learned Lord, Lord McCluskey, read out from the letter that I sent to him last month—and it is certainly clear that it is the Government’s intention that issues that arise in respect of Acts of the Scottish Parliament over whether they are compatible or within competence, under Section 29 of the Scotland Act, should be treated as devolution issues. They should use the procedures that currently exist for devolution issues and should not go down a route for compatibility issues. Indeed, my concern was that you could have some parts going down a devolution issue and some going down a compatibility issue. That is certainly our intention; I will look carefully at these amendments as drafted to make sure that proper effect is given to that intention and that an unintended ambiguity has not arisen.
The noble and learned Lord, Lord McCluskey, also raised the question of time limits. The reason for the exception here was not without precedent—and I think that there was agreement generally that the time limits should be there. Section 7(5) of the Human Rights Act 1998 provides that proceedings alleging that a public authority has acted unlawfully by virtue of Section 6(1) of the Human Rights Act must be brought within a year of the alleged unlawful act. However, this time limit can be extended if the court or tribunal considers it equitable having regard to all the circumstances.
In a case reported last year, R (Cockburn) v the Secretary of State for Health, the court considered it equitable to extend the time limit under Section 7(5) because the claim raised a matter of public importance, and it was not suggested that the delay had not caused hardship to the defendant or to third parties or was detrimental to good administration. This is to give discretion to the courts when it may be that this is how justice can be done in circumstances where no one is necessarily at fault and permission was not sought in the time limit specified in the amendment.
The other point related to the point raised by the noble and learned Lord, Lord McCluskey, about the Lord Advocate or Advocate-General being able to refer a matter to the Supreme Court. This is an issue which I have certainly given careful consideration to, and I readily accept that there are good arguments on both sides. There is the argument, as the noble and learned Lord indicated, that a lot of cases might be backing up when one decision is needed to resolve a whole host of cases. On the other hand, as I indicated when I spoke earlier, the advantage of the trial having been completed, and the Supreme Court having the advantage of the case having been given consideration by the High Court of Justiciary, is something that is of importance. However, I will reflect again on that. I have done so many times, and there are important issues here.
Lord McCluskey
I have not had a chance to check, but I have a recollection that the Attorney-General in England intervened to have a case taken to the Supreme Court earlier, but I am not sure about that. Perhaps the noble and learned Lord could deal with that on another occasion, if he is not able to do so today.
Lord Wallace of Tankerness
Indeed, I can confirm that the Lord Advocate has referred cases directly to the Supreme Court; the so-called “sons of Cadder” cases were on references by the Lord Advocate to the Supreme Court within the last 12 months. So it clearly has been done. Those were cases clearly where there was a wish to get clarity in some of the implications of the original Cadder judgment. So there are certainly good arguments as to why that should be there, and ones that I am certainly prepared to listen to further.
Lord Wallace of Tankerness
I am grateful to the noble and learned Lord, Lord Boyd, for that because there are arguments there and I will give further reflection to them.
A good number of issues have been aired on certification. I am grateful to the noble and learned Lords, Lord Cullen, Lord Cameron of Lochbroom and Lord Boyd of Duncansby, who indicated on certification that although there have been issues against it, in fact the case that the Government have sought to make against certification can be justified on a number of grounds. It is right, as a number of your Lordships have indicated, that we are not comparing like with like. As I indicated in my opening remarks, in England and Wales the whole criminal justice system of substantive criminal law and criminal procedure is the potential subject matter of appeals to the Supreme Court, whereas here we are dealing with what are essentially constitutional issues that arise in the context of a criminal case—namely, convention compliance or European Union laws.
Also, as I indicated before, the original justification for certification was very much administrative. It was an Administration of Justice Act in which it was introduced, to ensure that there was not a great flood of cases. I believe that it was brought in not for any reason of jurisprudence—as the quotes from the then Lord Chancellor, Viscount Kilmuir, suggest—but as an administrative break. Again, not least because of the representations which we have received from the Lord Justice General, we will treat these matters very sensitively and seriously, giving proper weight to the arguments that have been advanced again. It would be fair to say that the arguments advanced in the course of your Lordships’ debate this evening have not really prompted me to change my mind on this, but no doubt these matters will be returned to.
I am grateful to the noble and learned Lord, Lord McCluskey, for giving us a focus for some of the debates which we have had, and I very much hope that on Report—
Lord McCluskey
I want to reiterate that I regret that because of the way the amendments were grouped, the debate was not able to take the coherent form which all of us wanted. Certainly, I am not satisfied with the manner in which I was able to present the individual arguments on the separable points. However, I am very grateful to the noble and learned Lord for indicating that one way or another we will be able, when we return to this matter more maturely on Report, to look at the remaining issues that will be outstanding—because they are not all going to be raised again—and deal with them coherently and finally at that stage.
Lord Wallace of Tankerness
I concur with the noble and learned Lord and perhaps we will have a bigger attendance, although that should not in any way diminish the quality of the contributions we have had this evening, because these are important issues. With these words, perhaps we can confirm that Clause 17 will not stand part of the Bill.
Scotland Bill
Lord McCluskey Excerpts(13 years, 3 months ago)
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Lord McCluskey
My Lords, I declare an interest, and not a patrimonial one. The First Minister of Scotland asked me and three distinguished lawyers to look into the relationship between the Supreme Court and the Scottish criminal courts. That of course followed the somewhat acrimonious debate which the noble and learned Lord, Lord Davidson, has just mentioned. The review group’s report will be published in a few weeks, perhaps less, and I hope that the Government will take notice of what we recommend.
However, when addressing your Lordships, I speak entirely for myself and not on behalf of my review group. I had intended to speak for between 20 and 25 minutes with plenty of forensic flourishes, as your Lordships would expect from an aged lawyer, but over coffee the noble Lord, Lord Hughes of Woodside, persuaded me that four or five would go down very well. Despite being a lawyer—bearing in mind that I am an unpaid lawyer of course—I shall try to be as brief as I can, and I shall concentrate on the one issue on which I can claim a degree of expertise. However, Clause 17 is a matter that will need to be looked at very carefully when we come to Committee, as both previous speakers have intimated.
Judicial decisions on human rights issues that have aroused public debate over the years have included the right to slop out, mentioned by the noble and learned Lord; the right of prisoners to vote; and, going back some years, the duty of the British Government to pay compensation to IRA hooligans, and their relatives, who had sought to murder a large number of people in Gibraltar. These decisions follow a kind of pattern from the court in Strasbourg, but ever since the Human Rights Act came into force in 1999, these decisions have been taken in this country. It is our own domestic courts that apply the human rights law in our domestic circumstances and in particular in Scottish criminal trials. Some of the decisions in those cases mentioned have caused enormous problems for the Scottish prosecution system.
The jurisdiction of the Judicial Committee of the Privy Council, created in 1998, has now been passed to the Supreme Court, which has taken some of the more recent decisions. As has been said, the debate about the Supreme Court was couched in offensive and unparliamentary language, and I totally and utterly deplore that. However, I shall confine myself to the merits of this particular clause, Clause 17. As has also been said, we are not just legislating about a case or two, an insult or two, or a judge or two. We are legislating about a system that will probably endure for decades, so let us please concentrate on the principles and let us try to get it right this time.
The decision to create a right of appeal from the High Court in criminal cases, for the first time since 1701, was enacted in the Scotland Act 1998. The system that was set up was inserted into that Act as if it were a necessary by-product of devolution. In my view, that was clearly a mistake. The creation of a non-Scottish court with final say on the interpretation of the European Convention on Human Rights listed in the Human Rights Act 1998 for the Scottish criminal courts was necessary, but had nothing to do with devolution. I accept that there was a need, flowing from the new devolution system, to have a United Kingdom supreme court with a jurisdiction relating to the vires question: that is, the possibility that the Scottish legislature and Executive might exceed the limited and well-defined powers that were conferred and devolved to them under the Scotland Act.
We talked about this question of vires in 1978, when I had the privilege of helping to conduct the 1978 Bill through this House, and we reached certain views then about the need for the Judicial Committee of the Privy Council to look into these matters, which have nothing to do with human rights. As a consequence of devolution—I emphasise these words—there was no need to give the Supreme Court or its predecessor any right whatever to be involved in criminal cases except in relation to vires, and possibly in relation to defining the law.
Therefore, while I accept fully that legal disputes regarding vires must go to the Supreme Court and must be appealable to the Supreme Court—I have no quarrel with that because these are truly devolution issues—the decision to make the European Convention on Human Rights part of our domestic law was entirely separate from the matter of devolution and should not have been dealt with in the Scotland Act at all. It was an accident that it was, and probably came about because during the passage of the Bill it became plain that it was not going to come into force the same day as the Human Rights Act. A temporary expedient was invented and it went into the Bill without proper scrutiny of any kind.
The Human Rights Act 1998 imposed duties on all public authorities to act in accordance with the human rights in the convention. However, the public authorities included such people as the Attorney-General, the Director of Public Prosecutions, the police and the Lord Advocate, whether or not they were devolved persons. The Attorney-General was plainly not devolved, and nor was the DPP, but the duty was imposed on them, too. The acts of the Lord Advocate, in exercising what are properly called his retained functions—the functions, mentioned by the noble and learned Lord, of being in charge of prosecution and investigating deaths in Scotland—are, as they have always been, functions of a very special character. The Lord Advocate shares no responsibility with his fellow Ministers for his or her decisions in relation to these matters. There is no collective responsibility either way.
Therefore, it was constitutionally inept to do what was done by the Scotland Act 1998—to ask the courts to treat the acts of the Lord Advocate in exercising his retained functions as though they raised devolution issues. That was precisely what the Act did. I borrow from the expert report of Sir David Edward, which was mentioned by the noble and learned Lord the Advocate-General. I think the noble and learned Lord, Lord Boyd of Duncansby, was a member of that group. It got it absolutely right; it was constitutionally inept to do what was done. Sadly, however, I fear that what is now contained in Clause 17 is also constitutionally inept and seriously flawed. That is a matter on which I shall not detain your Lordships in any detail this evening. We can look at it in detail in Committee.
Let me just hit the main points. First, the new section still focuses on the acts of the Lord Advocate. There can be happenings, events and circumstances in the course of a typical trial that cause a breach of someone’s human rights. However, they can be nothing to do with the acts of the Lord Advocate. They may be in spite of the acts of the Lord Advocate. The committee that I sit on could offer some examples of that. Not every incompatible act that happens in a criminal trial is an act of the Lord Advocate. It might be an act of the police, the Prison Service or the court itself. As far as I know, the Bill provides no route whereby breaches of human rights in criminal proceedings by persons other than the Lord Advocate can be brought to the attention of the criminal courts. That is a serious lapse.
I must also ask why it was necessary to give the Supreme Court extremely wide powers, as the proposed new section does in Clause 17. They are listed in new Section 98A(9). All that is necessary is for that court to define the convention law applicable, define the right, say whether there has been a violation and send the case back to the High Court of Justiciary to allow it to do what it has been doing since 1701 and apply the law to the facts and circumstances of the case in hand. In other words, that method of proceeding would enable the historical independence of the Scottish criminal justice system to be preserved.
There is also a question, which I shall not go into in any detail, about the procedure that is to follow this change. At the moment it is a rather complicated procedure. It is very messy, with lots of paper. It looks as though the new section will result in just a change of paper; otherwise it will be equally messy and equally likely to cause the delay that the noble and learned Lord mentioned.
I also touch on certification. No criminal case can go to the Supreme Court on a human rights issue in England, Wales and Northern Ireland unless the “local” apex court grants a certificate to say that a point of law of general public importance has been raised. Curiously enough, although the High Court of Justiciary has been the apex court for Scotland for centuries, the Scotland Act, in seeking to devolve power to Scotland, not only created a right of appeal for the first time in nearly 300 years but did not give the High Court of Justiciary the same right as is enjoyed in England, Wales and Northern Ireland. Why the court in Scotland should not be trusted to rule on this matter, I do not profess to understand.
In conclusion, the correct approach to this whole matter is to identify the true role of the Supreme Court in light of the Human Rights Act. The expert group, with whose conclusions—but not the consequences in the Bill—I agree, recommended that the legislation should,
“make explicit, and put beyond doubt, the nature and limits of the jurisdiction of the Supreme Court in relation to criminal proceedings … in Scotland”.
It goes on to say that the new,
“statutory formulation should be such as to concentrate attention on the compatibility with Convention rights of the criminal proceedings as a whole”.
Therefore, my final point is that I agree with this approach, which Clause 17 fails to adopt. The words “as a whole” are key to the matter. Respect for the historical role of the high court in Scotland is an abiding principle that should be observed unless there is some powerful reason to depart from it. I hope that in the course of these debates we can persuade the noble and learned Lord the Advocate-General to persuade his colleagues that this approach should be adopted. I certainly hope to return to this matter in Committee.