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Lord McCluskey: I regard that reply to the points I made as abysmally unsatisfactory. First, will the Lord Advocate kindly note that I drew attention to the fact that the power of the sheriff is effectively to be raised by 278 per cent.? That is the figure I gave and he can ask his officials to check it. The effective power of the sheriff today is 18 months; the effective power of the sheriff when this Bill becomes an Act will be 50 months. That is an enormous increase in power. Perhaps the Lord Advocate will be good enough to acknowledge at some stage that that is correct.
Secondly, when this matter was debated at Second Reading, the noble and learned Lord, Lord Clyde, expressed support for certain measures in the Bill and his discontent over this specific matter. He drew
attention to the lack of need for any such power. He also pointed out that there is considerable danger of a greater risk of inconsistent levels of sentencing in the sheriff court. He pointed to the fact that in the High Court the judges often meet in the morning; they meet for lunch; they occasionally have conferences; and they have regular meetings every Thursday morning. They can exchange information with one another and achieve a degree of consistency through that method and also through the sentencing information system. There are no such mechanisms available for sheriffs and the degree of inconsistency will rise dramatically.The Lord Advocate said that we should have confidence in the continued competence and role of Crown counsel. I say with the utmost sorrow that I do not have the same confidence that I used to have. That is partly because the present Lord Advocate, the noble and learned Lord, decided, against the advice of many people, including myself--we made representations to him, to his predecessor and again to him--that he should continue to appoint to the office of Crown counsel people who were independent, departing from the tradition that has existed for the entire history of Scots law and putting into that office permanent, full-time servants of the Crown Office with a salary and promotion prospects. I cannot believe that the continuation of that practice, which was brought in around Christmas-time without any intimation to me-- I read it in the Scots Law Times--is good for the independence of Crown counsel.
I also drew attention to the fact that the justification for this measure in 1987 was given in terms of the absolute numbers of cases. I would seek to have from the Lord Advocate, preferably before Monday--because this matter will arise again on Monday, and again on Report, either on the first day of Report or the second day of Report, or whatever day of Report is required in order to have satisfactory answers on this matter--the absolute numbers of cases. It is those numbers that count, not the alleged increases. I do not know what the increases mean. The Lord Advocate referred to circuits. I thought they were abolished in 1987, but he will no doubt correct me if I am wrong.
If there is a pressure upon the High Court because of some increase in the number of cases, the correct answer is to appoint High Court judges. Why, instead of having High Court judges imposing sentences of six-and-a-half years, should we have temporary sheriffs? One thing is clear. It is a sight cheaper to have a temporary sheriff than to have a High Court judge. That points to the truth of the suggestion made by the noble Lord, Lord Macaulay--I hope it is not true--that this is a Treasury-led initiative.
The Lord Advocate also referred to the power to issue sentencing guidelines. That power is not being used. For reasons with which I do not greatly sympathise, the Criminal Appeal Court in Scotland chooses not to issue sentencing guidelines. It chooses to make decisions on the basis of individual cases, and that in a sense sets a trend. There is a kind of incremental wisdom. There is no attempt to prescribe great principles.
On the matter of judicial training, I have the advantage of having attended the Judicial Studies Training Board in England. I found to my surprise that a great many of the people who were being trained there had virtually no experience of the criminal law and so they really did need the training. When we had our exercises to discover what possible sentences should be passed, they varied from probation or a slap across the wrist to 18 years in one case. They really needed the training. That is an entirely different situation from the one in Scotland, where almost universally the people who go onto the Bench have some experience of criminal work. I do not have the same confidence that Lord Ross, with all his experience, will somehow create a kind of even and consistent level of wisdom among temporary sheriffs. That seems to be a quite ridiculous idea. Why on earth should we give temporary sheriffs this enormous power?
The noble and learned Lord also referred to the suggestion that the sheriff principal somehow allocates work in the same way as the Lord Justice General did. I do not believe that the Lord Justice General does allocate work in the criminal courts on that basis. I hope that the noble and learned Lord will write to ask him whether he does. I should like to know whether the sheriff principals, some of whom cover enormous areas with vast numbers of sheriffs, have any possible time and energy for allocating particular sheriffs to particular work. I do not think that is a possibility and I am surprised that the noble and learned Lord should suggest that to us.
He also said that it is possible that the Scottish Legal Aid Board will sanction counsel. I hope he will make inquiries of the Scottish Legal Aid Board to see whether in the light of these new provisions it intends to vary its practice from that which obtains now.
In relation to the matter of consultation, the matter that was put out for consultation in 1994 was a proposal that possibly the sheriff's powers might be raised to sentencing for four years at a time when the remission was going to be a half of that. Under the provisions in the 1993 Act the sheriff's power was to put a person in custody for 24 months. That was effectively what it was. There was no consultation about a proposal to give the sheriff an effective power to send someone to prison for four years and two months; in other words, a five-year sentence with one-sixth remission.
I would like the noble and learned Lord the Lord Advocate to write to me as soon as may be to explain who were the 15 persons or bodies who were against this proposal and who were the 14 for it. That is 29 out of 31 and I would like to know who the other two are as well. They were not being consulted on the measure which this Bill contains. It is important that this Committee should hear and that the Chamber should know what are the absolute numbers. The Lord Advocate mentioned the increase in the number of cases. No doubt we shall hear the numbers fairly soon--that is to say, the actual number of cases indicted in the High Court. We shall also hear something about the length of cases. The noble and learned Lord the Lord Advocate spoke about the number of adjournments and that suggestion baffles me. The idea is that because
cases are adjourned therefore he should send more cases off to the sheriff court. I do not understand the logic of that argument at all. I express myself as being deeply dissatisfied. I hope that at some stage we shall have an opportunity to vote on the matter.10.15 p.m.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down perhaps I may respond briefly to some of the points he makes. As regards the figures, I shall do my best to ensure that a letter is dispatched to him tomorrow addressing the various issues which he raised, including the number of cases coming into the Crown Office each year; the number of cases indicted and the number of adjournments which take place and so on. I hope that his experience in sitting regularly in the criminal courts will convince him that there is at least some support for my contention of an increase in the volume of business of the High Court of justiciary in Scotland.
The noble and learned Lord made certain comments about Crown counsel which I should deal with. It is a matter of regret that a High Court judge sitting in this House, let alone anywhere, should feel it appropriate to express reservations about the confidence that the court has in Crown counsel. As Members of the Committee will know, they are the advocate deputes who prosecute daily in the High Court in Scotland. I personally regret that the noble and learned Lord has chosen to criticise me for deciding to appoint to that team a lawyer who had been a procurator fiscal for many years. He has now resigned from the service and taken up an appointment as Crown counsel. I did so after I received a report from a group chaired by the Solicitor-General, including others unconnected with the Crown Office, which recommended that such appointments should be made if individual candidates merited appointment. In accepting the recommendations of that group last December, I have been considering when to make an appointment.
It is an unfortunate fact of life that since I was an advocate depute in the early 1980s--certainly since the noble and learned Lord was an advocate depute many years previously--the willingness of members of the Faculty of Advocates to serve as Crown counsel has not been as enthusiastic as it used to be. It would be wrong to go into that matter in any detail, but it is a consideration that has to be taken into account. Obviously, even if only one person approached declines to serve, that limits the field from which the Lord Advocate can select his team of Crown counsel.
All I can say is that the views that the noble and learned Lord expressed about my decision are not universally shared by those involved in the legal profession in Scotland. It is probably inappropriate that I should say any more. I am glad that he agrees with me that there would be value in the power of the sentencing guidelines being used. He is in a better position than I am to encourage his colleagues to do so and I look forward to his support in that regard.
It would be constitutionally wrong of the Government to interfere in the work of the Scottish Legal Aid Board and in how it exercises its powers, but I shall certainly
draw to its attention the views which have been expressed tonight. Whether the lawyers who serve on that board include members of the faculty and solicitors who share the views which have been expressed tonight is a matter for them to decide, but I undertake to ensure that the observations that have been made here are drawn to the board's attention.The consultation exercise, as set out in the White Paper, related not only to these proposals but to those on early release. It was therefore open to any consultee to examine the issue in the way in which the noble and learned Lord, Lord McCluskey, has done. I shall do what I can to provide the noble and learned Lord before Monday with a breakdown of those who supported the proposals and those who did not. As I said at Second Reading, the consultation exercise took place on the basis that consultation responses would be made public unless the individual consultees requested otherwise. It is possible that some who supported the proposals and some who were against them requested that their views should be private. Subject to that qualification, however, there should be no difficulty in meeting the request that has been made.
I appreciate that the noble and learned Lord feels strongly about this matter, as does the noble Lord, Lord Macaulay. All that I can do is to assure other Members of the Committee that the matter has been considered and that the proposals command a measure of support--albeit that they command a measure of opposition also. In the Government's view, however, they are appropriate to deal with the practical problems which the Scottish courts face. I personally have greater faith in the sheriffs, in those who sit as temporary sheriffs and those who practise in the sheriff courts, than has been expressed by the noble Lord, Lord Macaulay, and the noble and learned Lord, Lord McCluskey, tonight. On that basis, I continue to invite the Committee not to support the amendment.
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