Scotland Bill

Lord McCluskey Excerpts

Tuesday 6th September 2011 Lords Chamber

[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.