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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

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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.



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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.

5 pm

In short-for the moment, I am touching only the high spots-we agreed that it was right and proper to retain the jurisdiction of the Supreme Court in relation to human rights issues hitherto governed by the Human Rights Act. I think that we are all agreed about that and I do not know of anyone in this Committee who thinks differently.

We also agreed with Sir David Edward's group-I think that the Government have accepted this-that we should define and restrict the jurisdiction of the Supreme Court in Scottish criminal cases to determining a human rights issue and then remitting the matter to the Scottish High Court to deal with the consequences. I think that we are also agreed that vires issues, about the competence of Scottish Ministers and the Scottish Parliament, should be dealt with as devolution issues. We are particularly pleased that the Government have recognised that the Supreme Court will remit to the High Court. That means that the High Court is essentially to retain its centuries' old role as the apex or final court in regard to Scottish criminal cases.

There are a number of additional proposals which I shall touch on but deal with separately slightly later on in order to avoid speaking for a very long time. One relates to the certification of cases for the Supreme Court; in other words, to give the High Court a power to give or withhold a certificate, that certificate being a prerequisite before the Supreme Court can consider an appeal in a criminal case.

We have also to look at the timescale which is allowed for leave to appeal against a decision of the High Court. We say that it should normally be at the end of the case but that there may be exceptions. I shall have to look at that in a little more detail later on. We were also anxious that the Lord Advocate and the Advocate-General for Scotland should have certain rights in getting cases before the Supreme Court, perhaps even before the end of the case.

In particular, we did something which was not entirely popular with the Scottish Government-in fact, we were not very popular when we said that the jurisdiction of the Supreme Court should be retained-which was to advise that Clause 17 was far too restrictive, as had been Section 57 of the Scotland Act, in that it related only to acts or failures to act of the Lord Advocate. We advocated replacing that with a right of the High Court to consider breaches or possible breaches of the Human Rights Act by any public authority. That could include even a criminal

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prosecution taken by a person other than the Lord Advocate. In the famous Sweeney case, which was prosecuted essentially by the victim of the rape, after the Lord Advocate-who was at that point the noble and learned Lord, Lord Mackay of Clashfern-stood aside, I am not entirely sure that the victim in the Sweeney case would have been regarded as a public authority for those purposes. I do not know, and I do not ask anyone to express an opinion on that matter, particularly at this late hour of the afternoon.

Clause 17, inspired by Sir David Edward's group's report, went some of the way and we believe that we have just followed it to its logical and proper conclusions. We have no criticism of what Sir David and his colleagues said in that report. I drafted my amendments in September and October 2010. I withheld them for a long time in the hope that the Government would come forward with their amendments, but when they did not do so, I put mine in.

Having attended the meeting of the Scottish Parliament committee considering the Scotland Bill, I then heard the Lord Advocate accept all the conclusions of the report of the group which I had the honour to chair. The Scottish Government's Bill team prepared a number of amendments. I felt that they ought to be before this House. But I want to make it clear that although I support those amendments, I do so because those amendments were drafted by technical people to give effect to the proposals of the review group that I chaired. I am not the spokesman for the Lord Advocate and still less a spokesman for the Scottish Government or the First Minister.

However, the result was that when the Advocate-General for Scotland, the noble and learned Lord who is here today, finally lodged his amendments towards the end of December just before Christmas, many of mine were rendered largely superfluous. So I decided that they should go and we should instead adopt an idea that was suggested to me by the Lord Advocate's Bill team; namely that we should simply put my proposals into Amendments 71 and 72 in the name of the noble and learned Lord.

I will say something about the underlying principles. First, I quote and endorse what was said in the House of Commons at Third Reading, to which reference has been made, by the Secretary of State for Scotland. He said in the context of what was then Clause 13 and is now Clause 17:

We all agree with that. He continued:

"I welcome the broad support for the idea that people in all parts of the United Kingdom should enjoy the same rights under the courts".-[Official Report, Commons 21/6/11; cols. 282-283.]

That is important because it has a strong bearing on the matter of certification.

Following that point, in the debate on 21 June, I find that Ann McKechin, a spokesman for the Labour opposition there, spent some time discussing the Supreme Court new clauses. She said:

"I would like to put on the record what principles should be followed in referring cases to the Supreme Court".



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She continued:

"We believe that no one living in Scotland should have less access to the enforcement of their human rights than any other citizen living elsewhere in the UK".

Finally, she said that,

That is an important principle that underlines what we said-that we wanted consistency throughout the United Kingdom. We did not seek and we do not advocate uniformity. There has never been uniformity in the criminal process between the courts in Scotland and in England. They have gone different ways, with I hope no harm to the concept of providing a fair trial. We must have consistent interpretation of the human rights provisions, but not necessarily uniformity in how the law is applied in particular jurisdictions where we have quite different systems.

In relation to the matters of principle, I have suggested the correct thing to do. I am not quite sure where the suggestion originally came from but I certainly endorse it. When we make amendments in relation to criminal appeals, those amendments should not go into the Scotland Act 1998 but should go into the Criminal Procedure (Scotland) Act 1995. That is the principle adopted by the Advocate-General and I congratulate him on doing that because it is the right place. In a sense, the issue of criminal appeals in relation to Scottish criminal trials and human rights belongs properly either in the Human Rights Act or alternatively in the Criminal Procedure (Scotland) Act 1995, which deals with appeals. That error, which was made in 1998 in the Scotland Act, is now to be remedied.

It is important to note as a matter of principle that the functions of the Lord Advocate were retained functions, not devolved functions. That was one of the flaws that David Edward so eloquently exposed in his report, which showed that it was a mistake to treat the Lord Advocate's acts as devolution issues. The High Court of Justiciary was not in any sense devolved at all.

The other matter that I want to draw attention to as a matter of principle is that the only recent relevant change affecting the High Court of Justiciary over criminal appeals is the change made when a new obligation to respect the Human Rights Act and the convention rights contained therein was created in the Human Rights Act 1998; no other change was made in relation to the High Court of Justiciary. It was just an extension of a matter that they had to consider and, in respect of which, it was felt there should be an appeal to the United Kingdom court, for reasons that I support and we explained very fully in the report that I had the honour to act as chair for.

One other point of important principle-and I owe a great debt to Professor Neil Walker in this regard, who made the point very clear for us-is that when any supreme or appeal court sits, it should, so far as possible, be exercising different functions from the court below. It may examine the same question of law and have to revise the question,

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but, on the whole, you do not have different levels of courts in order to examine the same question. The higher court should be dealing with different questions from those dealt with by the court below.

Unfortunately, we have a grouping with a vast number of amendments, including the particular matters I have dealt with. In the mean time, in order to get Clause 17 out of the way and be sure that we are going ahead with Amendments 71 to 72K, I should sit down for the moment but come back to deal in detail with the particular matters that arise separately. I ask that this clause should not stand part.

Lord Wallace of Tankerness: For the convenience of the Committee, I will just explain why we are supporting the proposal that the clause should not stand part and speak to the amendments that are in my name, to which the noble and learned Lord, Lord McCluskey, has proposed his own amendments. That might help some of the structure of the debate.

I start by thanking the noble and learned Lord for the way he introduced this issue and gave a very fair explanation as to how we got here via the judicial representations to the Calman commission, the expert group that I set up under the chairmanship of Sir David Edward, and the subsequent group, to which the First Minister appointed the noble and learned Lord to look at this issue. It is perhaps rare that legal issues get quite as much public prominence as these have had, but there are important issues here. The purpose of Clause 17 was to provide that questions as to whether acts of the Lord Advocate, acting as the head of the criminal prosecution service, were compatible with ECHR or EU law should not be devolution issues under the 1998 Act. Clause 17 provided a separate statutory right of appeal to the Supreme Court for these issues. Under the current Scotland Act, acts of the Lord Advocate acting as the head of the criminal prosecution system in Scotland that are not compatible with ECHR or EU law would be ultra vires by virtue of Section 57(2) of the Scotland Act 1998.

In order to take account of some of the recommendations from the committee chaired by the noble and learned Lord, we thought it better to seek to delete Clause 17 and bring forward new clauses, otherwise it was going to get very difficult and convoluted indeed. In doing so, as the noble and learned Lord pointed out, we have in fact taken on board the point about the Criminal Procedure (Scotland) Act 1995. Many of the things we are doing seek to amend that.

The debate on Clause 17 and the issues that it raises has come a long way. Certainly during the summer there was a lot of heat, if not necessarily light, about the role of the Supreme Court in these matters. The finding in one of the main recommendations of the group under the noble and learned Lord, Lord McCluskey, that it was right and proper to retain appeal to the Supreme Court, allowed us to try to find a way forward that could command as much consensus as possible. There has been progress, and that progress and the fact that we have reached so many areas of agreement has been achieved by open dialogue, proper consultation and mature consideration on all sides. It is certainly in

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that spirit that I will consider the arguments that are made by noble Lords contributing to the debate this afternoon.

5.15 pm

Amendments 71 and 72 are the Government's response following careful consideration of the recommendations made by the review group led by the noble and learned Lord, Lord McCluskey, as well as taking on board the views of other noble Lords and having regard to the comments and representations from the Lord President of the Court of Session and the Scottish Government. As most people in the Committee are aware, the Lord President has written to the Clerk of the Parliaments expressing his views on these matters. We ought to be aware of that. He has exercised his powers under the Constitutional Reform Act 2005 to make representations regarding his concerns about Clause 17. I have considered his letter carefully, and Amendments 71 and 72 address one issue that he raised relating to extending the right of appeal so that it does not just apply in relation to acts of the Lord Advocate. He also raised the question of certification, which is clearly an important issue which I will address later.

I am persuaded that the right of appeal to the Supreme Court in criminal proceedings should extend to questions as to whether acts of public authorities are compatible with the ECHR and European law and should not just be limited to certain acts of the Lord Advocate. The definition of "compatibility issue" inserted by Amendment 71 achieves this change and provides that a "compatibility issue" is a question as to whether an act of a public authority is made unlawful by virtue of Section 6(1) of the Human Rights Act 1998 or is incompatible with European Union law. A compatibility issue can be raised only in criminal proceedings. The noble and learned Lord in his review group report-and I think that I recall this from his evidence to the Scottish Parliament Committee-referred to making a number of issues justiciable under the present arrangements under Section 57(2). There have been some quite contorted views as to what the Lord Advocate does or does not do to allow the matter to be considered. Taking forward and reflecting in our amendment the recommendation of the review group allows a much more sensible and straightforward way to deal with these issues.

I am not minded to accept Amendment 71B proposed by the noble and learned Lord, Lord McCluskey, that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with the ECHR or European law. I may have misheard him, but I thought he said as much himself in his remarks. Questions as to whether an Act of the Scottish Parliament is within the legislative competence of the Parliament should continue to be devolution issues as they relate to the exercise of the Parliament's powers. They are quite properly devolution issues. A question that concerns the compatibility of an ASP with the ECHR or European law rather than a question of an interpretation of a reserved matter should not result in the application of a different appeal mechanism. In addition, it would mean that if the amendment was carried, if someone wished to argue that an Act of the Scottish Parliament was incompatible with the European Convention on

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Human Rights and also that it was not law under Section 29, as it also related to a reserved matter, they would need to use a new appeal route in relation to the European Convention of Human Rights issue as well as using the existing devolution issues appeal route. That seems unduly cumbersome and a recipe for delay.

The review group led by the noble and learned Lord made a persuasive case that when the Supreme Court considers a compatibility issue, it should not consider whether a miscarriage of justice arose as a result of the compatibility issue. Instead, the Supreme Court should be required to determine a compatibility issue and then remit the matter to the High Court of Justiciary in Scotland. Amendment 72 provides that the new appeal right to the Supreme Court can apply only to the determination of a compatibility issue. The Supreme Court can reformulate the question it is considering, but only for the purpose of determining the compatibility issue. Amendment 72 clearly provides that the powers of the Supreme Court can be exercised only to determine the compatibility issue, and once the court has done this it must remit the proceedings to the High Court of Justiciary.

There are a number of points in respect of which I have not yet been persuaded by arguments put forward by the noble and learned Lord's review group, or by the Lord President of the Court of Session and others. Principally, I have yet to be persuaded that it is necessary to provide that a compatibility issue can be appealed only to the Supreme Court if the High Court has certified that it raises a point of general public importance. I respect the arguments that are put on the other side. It is a very well balanced argument; inevitably, when lawyers are involved there are compelling arguments on both sides. Nevertheless, we believe that the Supreme Court has a role as a constitutional court, and that the amendments which the Government are putting forward seek to provide a role for the Supreme Court to deal with certain constitutional issues that arise in criminal cases.

The High Court of Justiciary, sitting as an appeal court, is indeed the final court of appeal. It is the apex court in Scotland in respect of Scottish criminal cases. The exceptions that exist relate to devolution issues, and will exist in relation to compatibility issues if the House agrees these amendments. They will arise because of the constitutional issues raised by the European Convention on Human Rights and European Union law issues, and the need for those issues to be dealt with consistently-a word which I think the noble and learned Lord used, and which I would agree with-throughout the United Kingdom.

The system of certification in England and Wales arises due to the different nature of the Supreme Court in respect of criminal cases in England and Wales. In England and Wales, there is a right to appeal in criminal proceedings to the Supreme Court in respect of all issues, including substantive criminal law and criminal procedure, not just those relating to compatibility with the European Convention on Human Rights and European Union law. In addition, the requirement for certification in England and Wales was introduced to prevent the House of Lords, as it was then the court dealing with these issues, being flooded with criminal

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appeals. The then Lord Chancellor, Viscount Kilmuir, set out the background to the introduction of certification in England and Wales when the Administration of Justice Bill was being introduced in this House in March 1960. On that occasion, he said:

"If there is to be a right of appeal from the Divisional Court, the question arises: what test is to be applied? For, clearly, some limitation must be imposed on the right of appeal if the House of Lords is not to be flooded with criminal appeals to an unmanageable extent. Then again, whatever test is applied, it ought to be the same for appeals from the Court of Criminal Appeal as from the Divisional Court"-[Official Report, 24/3/60; cols. 249-250.]

This view was supported in the consultation which I undertook in February and March last year. The noble and learned Lord, Lord Cullen of Whitekirk, is here. As a former Lord President of the Court of Session, in his response to the consultation of the review group chaired by the noble and learned Lord, Lord McCluskey, he said:

"In any event the fact that in English criminal cases a certificate is necessary seems to me to be beside the point. It applies to the majority of cases, and is not directed to cases of alleged contravention of Convention rights",

or European Union law.

I am not persuaded that certification by the High Court is necessary to ensure that the Supreme Court considers only appropriate cases or to prevent it being swamped with cases. The Supreme Court has put a very helpful note on its website, which is also available in your Lordships' Library, entitled Scottish Criminal Cases and the UK Supreme Court. It includes details of the number of Scottish criminal cases that have been dealt with by the Supreme Court. The note sets out that since the Supreme Court was established, just over two years ago, it has dealt with 31 applications to appeal from Scottish criminal cases. In seven the High Court had granted leave to appeal, and of the remaining cases the Supreme Court granted permission to appeal on four occasions and refused it on 20 occasions. I understand that in the four cases in which permission was granted by the Supreme Court, two were upheld and two were dismissed. In addition, a number of cases have been referred to the Supreme Court for consideration, so it cannot be said that the number of Scottish cases being considered by the Supreme Court is in any way a torrent of cases.

Moreover, the House of Lords Constitution Committee, when considering this Bill-including Clause 17-noted that the review group led by the noble and learned Lord, Lord McCluskey, had recommended certification but considered that,

I accept that there does not appear to be a consensus in favour of certification. I recognise and respect that the Lord President agrees with the amendments tabled by the noble and learned Lord that certification is needed. The arguments against certification are also supported by a number of individuals including Sir David Edwards and most of the members of the original group that was set up. The Law Society of Scotland would prefer that the status quo remained at present but indicates that on the issue of certification

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it is not persuaded. The Faculty of Advocates, JUSTICE and the Scottish Human Rights Commission are also not persuaded.

The reasons give by these bodies and individuals have varied. In response to the consultation that I initiated on specific points relating to Clause 17, JUSTICE considered that certification was not required as,

The Scottish Human Rights Commission gave another reason for not supporting certification. In responding to my consultation, it commented:

"The introduction of a test of general public importance will create a barrier to justice in some cases. Such a barrier creates precisely the problem which the Expert Group recognised must be guarded against-namely the potential for different interpretations of Convention rights as between the different jurisdictions within the UK, with the result that a case in Scotland is decided differently to one in England and Wales that raises precisely the same Convention rights issue".

As I have indicated, the arguments for and against are well balanced. I will listen carefully to what is said in the course of the debate today and will reflect on that and the representations that have been made.

There are other points of difference with the amendments tabled by the noble and learned Lord, Lord McCluskey. I am not persuaded that I, my successors in office or the Lord Advocate should be able to refer a compatibility issue matter to the Supreme Court if the Lord Advocate or the Advocate-General is satisfied that it raises a point of public importance. I consider that the accused, the Lord Advocate and I should all be subject to the same constraints, so it will be for any of us to seek the permission of the High Court in Scotland or, failing that, the Supreme Court to appeal a compatibility issue to the Supreme Court.

I do not consider that it is necessary for the High Court to have power to refer a compatibility issue to the Supreme Court at its own instigation where it considers that the issue raises a point of law of general public importance. I consider that a compatibility issue should be able to be appealed to the Supreme Court only once trial proceedings have concluded and the issue has been determined by the High Court in Scotland. This will ensure that the Supreme Court has the benefit of the knowledge and understanding of the High Court. If it is important that an issue is determined quickly because of the implications for other cases, then there it may be possible for the courts, at each stage of the process, to hear and determine the issue expeditiously.

That said, I appreciate that these are very technical arguments; they are important but very finely balanced. I have deliberated over them, and I will be interested to hear your Lordships' comments in the course of this debate. I would be willing to consider returning to this on Report in the light of any comments that are made but I believe that, after a considerable amount of work and consideration, we have struck the right balance. The report of the expert group under Sir David Edward and the subsequent review group under the chairmanship of the noble and learned Lord, Lord

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McCluskey, have assisted us considerably in trying to reach our position, which I believe is well balanced. I commend the amendments to the House.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

Clause 18 : Time limit for human rights actions against Scottish Ministers etc

Amendments 42 and 43 not moved.

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.

5.30 pm

The Deputy Chairman of Committees (Lord Faulkner of Worcester): The Committee will be free to debate the amendments when we reach them on the Marshalled List.

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.



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Lord Boyd of Duncansby: My Lords, may I ask a question? They are on the Marshalled List in this group; that is the point. We are all here ready to debate these issues. It would be very unfortunate if we now moved on to other business and came back to this issue; these all form part of a group.

Lord Cameron of Lochbroom: I am in some difficulty because in listening to what the noble and learned Lord has already said about Clause 17 stand part, he justified his arguments by reference to later amendments in his name-namely, Amendments 71 and 72. It seems to me perfectly plain that these are before the Committee for discussion even though we may for the moment have swept Clause 17 out of the way-firmly batted it out of court. I ask your Lordships to reconsider the matter which has already been introduced because it would cause intense confusion if we passed over what the noble and learned Lord has already said in support of the amendments which will come in place of the displaced section at a later date.

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,

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

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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":

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,

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

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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-

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),

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).



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5.45 pm

In making these recommendations, it is fair to say that we were conscious of the sensitivities that the proposed changes in the jurisdiction might engage, and conscious of keeping our recommendations within the strict ambit of the remit that we were given. Nevertheless, it is true that our report-and perhaps more importantly the controversy that surrounded the cases of Cadder and Fraser, the debate that was provoked and, most importantly, the review headed by the noble and learned Lord-refocused the debate and changed the emphasis away from the role of the prosecutor. That was a welcome step.

I do not want to detain the Committee on the reasons for going away from the status quo, particularly now that Clause 17 has been departed from, but it is right to say that the jurisdiction was a somewhat contrived one, focusing on the role of the prosecutor, distorting the issue and widening out the definition of acts of the Lord Advocate beyond those which, perhaps, would have a more natural meaning, or particular steps in a judicial process.

We have moved on. The amendments before the Committee break down into a number of clear issues. The first is certification, focused on in the amendments of the noble and learned Lord, Lord McCluskey. That is now the real issue between us: whether or not there should be an additional hurdle, not previously present in the jurisdiction under the devolution issues, of certification. That issue is of genuine public importance. That certificate would be given by the High Court. The decision would be final, with no appeal against the certification. From this side of the House, like the noble and learned Lord, Lord Wallace of Tankerness, we will listen to the debate. Nevertheless, it is fair to say that we do not support certification.

There is of course an issue of principle. For myself, I have a philosophical difficulty with the concept that the court against which an appeal is being taken can itself control access to that right of appeal. There is no appeal against a refusal to certify if the issue is a point of general public importance. The right to petition the Supreme Court would not apply, as I understand it, to certification. Now, of course, I appreciate that it will be said that that does not apply to criminal appeals from England, Wales and Northern Ireland-although I think that there are some exceptions, habeas corpus being one of them. The fact that that is the case in relation to criminal appeals in England and Wales does not make it right that it should be present for fundamental issues of human rights arising from criminal cases in Scotland. The noble and learned Lord the Advocate-General is right to draw a distinction between criminal cases as such and the constitutional issues, which are focused in issues of compliance with the fundamental rights contained in the European Convention of Human Rights.

Moreover, as the issue of certification in England and Wales is at large in criminal cases, we are not dealing with a level playing field-we are not comparing like with like. The present system relies on obtaining leave from the High Court. Leave should be given only if a devolution issue is raised that is seriously arguable and sufficiently important to justify a hearing of the

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appeal by the Supreme Court. Therefore, I suggest that it is already a high test but there is a right to petition the Supreme Court for special leave if leave is not given. That, in my submission, is an important protection.

There is the question of how certification might work in practice. It would, as Lord Hamilton acknowledges, be a new function for the court. I have no doubt that the court would take the responsibility seriously but how would it work in practice? Although it is a different test, there were 15 cases in which special leave was granted by either the Judicial Committee of the Privy Council or the Supreme Court from 1 June 1999 to the end of February 2011. These included cases of the utmost importance, including the case of Holland, which related to disclosure and the conduct of identification parades, and, most recently, the case of Cadder. I do not suggest for one moment that that was improperly dealt with-far from it. However, the fact is that it was rejected in the sift on two occasions and leave to appeal to the Supreme Court was refused. The appellants presented a petition to the Supreme Court for special leave, which was granted. Whatever one might think of the rights and wrongs of the decision, it certainly dealt with one of the fundamental issues of rights of access to a lawyer. I just make the point that, had the law remained as it was in Scotland, Scotland would have been one of a dwindling number of European countries which denied a right of access to a lawyer before questioning by a police officer. This is perhaps a moot point if the European Union directive on access to a lawyer is opted into by the Government, because that will have to come about as a result of EU legislation. However, that was a fundamental issue and special leave was granted.

Lord Hamilton, the Lord President of the Court of Session, has written to Parliament under Section 5 of the Constitutional Reform Act. It is important that we consider all that he says in his capacity as head of the Scottish judiciary and give due weight to the issues that he raises. Of course, the Government have listened in relation to the first part of his letter, and we welcome that. However, it is also important to put the letter into its context and I shall make two preliminary points.

First, Lord Hamilton does not suggest that the proposal that the Government are advancing in any way impinges on the independence of the judiciary. If that were the case, it would be a most serious matter and would require us to draw back and think again. Secondly, he does not suggest that the proposals impose any further administrative burden on the court system or on judges. In many ways, if anything the burden is more likely to fall on the Supreme Court, and there has been no complaint from that quarter. In so far as the letter from the Lord President relates to certification, it has to be seen against the background of concern from the judiciary in Scotland about the jurisdiction of the Supreme Court.

As we have already heard, the Scottish judges made a submission to the Calman commission and one of the main difficulties that they highlighted was what they perceived as a difference of interpretation between themselves and the High Court and the Supreme Court on the test of miscarriage of justice contained

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in the 1995 Act. They also raised important issues about delays in the system and the burden. At that time, they suggested three alternative solutions. I need not detain the Committee with what those solutions were but two of them would have removed the jurisdiction of the Supreme Court altogether and the third would have widened the jurisdiction to include any criminal case-not just a convention or EU compatibility. In other words, it would be the same jurisdiction as England and Wales have and would be a novel one for the law of Scotland. It is fair to say that no one thought that the judges' third suggestion was one that they considered would be taken particularly seriously.

The issue that they put before us in the Calman commission was whether the Supreme Court should continue to have any jurisdiction in convention cases. The Calman commission considered that this went beyond the remit but acknowledged that there was a serious issue to be addressed, hence, of course, by the Advocate-General's expert group.

Some of the difficulties that the Scottish judges had initially highlighted in relation to miscarriage of justice and its definition were largely resolved in later cases, in particular, I think-no doubt I shall be corrected by others if I am wrong-the case of McInnes in 2009. Some of the issues in relation to the burden on the system and potential delays have been addressed, first, by the expert group and then by the Government and by the expert group of the noble and learned Lord, Lord McCluskey.

I submit that many of the original issues that the judges raised with us have now been dealt with. However, the Scottish judges have continued to press for changes to the jurisdiction. I need not go into this in any detail, as it would not be appropriate, but it is clear that there have been tensions between the two different levels of courts. Perhaps that is inevitable in a new jurisdiction. I suspect that any lingering issues will soon be resolved as the jurisdiction settles down and as the major issues are dealt with. I think many of them, such as disclosure, rights of access to a lawyer and so on, have already been dealt with. Delay was another early issue which was dealt with and on the whole it has not been visited since then and there is also the issue of changes in personnel.

Our task in this Committee is neither to arbitrate between the two courts, nor indeed to come down on one side or the other. Our task is to ask ourselves whether the imposition of a further hurdle in reaching the Supreme Court of the United Kingdom on compliance with fundamental rights and freedoms, incorporated in the European Convention of Human Rights, is appropriate or necessary. We on these Benches think that is not an appropriate measure to take.

We support the amendments that have been tabled by the Government. I listened carefully to what the noble and learned Lord had to say about Amendment 71B. He raises the important issue of how compatibility of an Act of the Scottish Parliament is dealt with in criminal proceedings. My view is that the issue of whether an Act of the Scottish Parliament is compatible with the European Convention of Human Rights should continue to be dealt with as a devolution issue.

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The question is whether the amendment of the noble and learned Lord the Advocate-General achieves that. We may need to look at that.

Amendment 71C concerns criminal proceedings. We will no doubt hear from the noble and learned Lord on that. Amendment 72A comes later in the group. I am not sure whether the noble and learned Lord spoke to it. I asked whether Amendment 72A was necessary, because the matter is dealt with in Section 124 of the Criminal Procedure (Scotland) Act.

6 pm

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

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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.



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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,

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:



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"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.

Lord Cullen of Whitekirk: My Lords, the review group under the noble and learned Lord, Lord McCluskey, is to be complimented on the work that it has done so enthusiastically but I have considerable reservations about the proposal that there should be certification for access to the Supreme Court. Of course, I speak with an interest in this matter as a former Lord Justice General. As matters stand, an appellant who seeks permission from the Supreme Court, having been refused it by the Appeal Court, requires to satisfy the appeal panel of the Supreme Court in accordance with the relevant practice direction that the application raises,

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.



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6.15 pm

As has been pointed out, the original reason for certification in the case of England and Wales appears to have been a fear that the House of Lords would be swamped with cases. I have yet to hear anything to indicate that the Supreme Court or its members have expressed concern that they are going to be or indeed have in the past been flooded with appeals. All that deals with the question of need, but the critical question is whether it is appropriate that, of all things, for human rights cases there should be a need to have this certificate.

The law relating to human rights, and in particular the way in which it impinges on criminal procedure, is still in a state of development. We have not yet got to the end of the road. Experience has shown that it may have important consequences for the liberty of a subject and for the processes of investigation and prosecution. The Supreme Court has the unique responsibility of interpreting the European Convention on Human Rights in a manner that achieves consistency across the United Kingdom while respecting the distinctive characteristics of the different jurisdictions. I respect what has been said by the present Lord Justice General in his written representations about the ability of the Appeal Court in Scotland to appreciate the operation of the criminal law in the community which it serves. Thus, that Appeal Court may be in a good position to form a view that the compatibility issue in a particular case does not, according to the court, raise a point of law of general public importance. There is nothing to prevent that Appeal Court from saying so and indeed giving it as a reason for refusing leave, but for that to constitute an absolute bar to an appeal to the Supreme Court is altogether a different matter. So it is very important to consider the practical implications of the proposal being made by the noble and learned Lord, Lord McCluskey.

Perhaps I should cite an example of what may happen. What if the Appeal Court in Scotland, for some reason, has not addressed the compatibility issue which had been raised by the appellant before it, whereas the Supreme Court considers that it should have done? The difference may be critical. This has happened in the past with regard to devolution cases and it may happen in the future with regard to compatibility issue cases. A recent example is provided by the case of Fraser, which has already been mentioned, decided in May last year by the Supreme Court. The court held that, in declining to address a devolution issue, the Appeal Court had failed to adopt the correct test. On the devolution issue, it decided that the non-disclosure of certain police evidence had deprived the appellant of a fair trial, and on that basis his appeal was allowed. Of course, the appellant had access to the Appeal Court by obtaining permission to appeal. I shall say nothing as to the rightness or wrongness of any of those decisions. What I am concerned with is the possibility for views to diverge.

If one supposes that a certificate is to be mandatory for a right of appeal to the Supreme Court, it raises a difficulty. It seems doubtful that an appeal court which had not determined the compatibility issue would find itself in a good position to decide whether to grant this supposed certificate. It is not impossible that it

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might do so, but it seems highly improbable, because, as far as it was concerned, there would be no compatibility issue to be addressed-and, of course, the Supreme Court is entirely for compatibility issues. This is perhaps just one for example of what may happen. All I say is that, in viewing this proposal, one should be very wary about approving it.

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,

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

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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.

6.30 pm

Lord Boyd of Duncansby: My Lords, I have very little else to add to what has been a useful debate. However, I hope that next time we come to this we are

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able to group the amendments in such a way that we can have a more structured debate, because it has not been particularly easy to follow. The noble and learned Lord has been up and down on his feet-I do not blame him for that in any way, but the way that this has progressed has been unfortunate. Perhaps next time we can look more clearly at grouping the amendments in a more coherent manner.

Lord Maclennan of Rogart: It may be regarded as something of an impertinence for one who is not a Scots lawyer to intervene in such a debate and I therefore propose to confine my remarks. I hope that when we do come back to this, there will be a jury as well as judges sitting, and that we may hear the voice of the man in the street on this matter. Speaking with the view of the man in the street, I am bound to say that I find the Government's position on this, and the views expressed by the noble and learned Lords, Lord Cullen and Lord Cameron, persuasive. It seems to me that the prime consideration is not whether or not the trial can be completed quickly, but whether or not justice is done. Those who are charged with an offence should have the right of appeal considered, unrelated to whether or not the issue is of public importance. It is of direct importance to the individuals involved in the trial. I may be completely off beam, and I recognise the risk of intervening in such a debate, but having listened to most of the arguments, I found them compelling, particularly on the side of the noble and learned Lord, Lord Cullen.

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,

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

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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

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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 Boyd of Duncansby: I referred a case about the independence of justices of the peace, for the very reason to which the noble and learned Lord, Lord McCluskey, referred-because of the importance in getting clarity at an early stage so that the system as a whole did not seize up.

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.



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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.

The Lord Speaker (Baroness D'Souza): My Lords, for the avoidance of doubt the Question is that Clause 17 stand part of the Bill. As many as are of that opinion will say Content; the contrary Not-Content.

Noble Lords: Not Content.

The Lord Speaker: The Not-Contents have it.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

The Lord Speaker: In Clause 18, Amendments 42 and 43 not moved?

Lord Foulkes of Cumnock: Not moved.

The Lord Speaker: The Question is that Clause 18 stand part of the Bill. As many as are of that opinion will say Content.

Noble Lords: Content.



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The Lord Speaker: The contrary Not-Content. The Contents have it.

Clause 18 agreed.

Clause 19 : Power to vary retrospective decisions about non-legislative acts

Amendment 44 not moved.

Clause 19 agreed.

6.45 pm

Clause 20 : BBC Trust member for Scotland

Amendment 44A

Moved by Lord Sewel

44A: Clause 20, page 14, line 6, leave out "the agreement of" and insert "having consulted"

Lord Sewel: My Lords, my mind goes back to consideration of the Scotland Bill in 1998. Some things are the same and some things change. What is the same is that now we are reduced to a relatively small House; what is different is that in 1998 our deliberations were at 2 am-when we used to carry on till that time-and now it is 6.45 pm. Nevertheless, as they say, I am sure that we will be able to make some progress.

The amendment deals with the appointment of what is called the BBC Trust member for Scotland. In olden days it used to be referred to as the "Scottish governor" of the BBC. At the moment the Bill says:

"A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment",

and then goes on to explain. My amendment would take out "agreement" and put in "consultation".

That is partly because of something that happened way back in 1974, when local government in Scotland was reorganised. I remember going to a conference of the good and the great, where the whole discussion was about the relationship between the two tiers of local government in Scotland, the regions and the districts. I remember a very distinguished civil servant at the time saying, "Given good will, the relationship between the two tiers of local government would work very well indeed", and a grizzled chief town clerk-those were the days when we had town clerks rather than chief executives-saying that in his experience the last thing that you could count on in the relationships between local authorities was the existence of good will.

I am not daring to say that that typifies the relationship between the Scottish Parliament and the Parliament of the United Kingdom, or between Scottish Ministers and UK Ministers, but having an appointment that depends upon the agreement of two Ministers from different Parliaments and maybe of different political hues, as sometimes happens in this House, creates at least the opportunity-I put it no stronger than that-for mischief-making. In other words, it is possible to generate a major row or a clash over something relatively minor, so that what perhaps starts off as an irritant becomes a major issue of principle. Basically, let us avoid that; let us avoid creating a structure that offers that possibility.



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By all means let us have consultation. My amendment would mean that the Secretary of State had consultation with Scottish Ministers. To be honest, I would prefer the Scottish Minister to have the decision rather than the Secretary of State, if we got away from the business of agreement. My first position is the Secretary of State and my second position is Scottish Ministers. I just want to avoid the opportunity-the invitation, almost-to create a fuss over something where it should not exist.

Lord Boyd of Duncansby: My Lords, there is an important point in what my noble friend says. The Calman commission recommendation was that:

"The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process".

There is no suggestion there that it would be by anyone other than the Scottish Ministers. Perhaps in addressing my noble friend's point, the Minister could also address the issue of why there has been a difference of approach in the Bill from that of the Calman commission's report.

Baroness Rawlings: My Lords, I am most grateful to the noble Lord, Lord Sewel, for putting down his amendment as it gives me the opportunity to clarify Her Majesty's Government's view on this delicate point.

Clause 20 will make certain that the Secretary of State has to seek the agreement of Scottish Government Ministers in the process of appointing the BBC Trust member for Scotland. Currently, the Scottish Government are involved in the appointment process on an informal basis. The clause will formalise the involvement of Scottish Ministers in the appointment process and gives them the legislative basis to undertake their responsibilities in relation to the appointment process.

Under the terms of the BBC charter, the Trust member for Scotland must be qualified by virtue of his knowledge of the culture, characteristics and affairs of the people in Scotland and his close touch with the opinion of that nation. Therefore, we feel it is preferable that Scottish Ministers should have a significant role in agreeing the appointment. In answer to the noble Lord, it is highly unlikely that the situation would arise in which they would fundamentally disagree over the appointment of a candidate. If Scottish Ministers do not give their agreement to the proposed DCMS appointment of the BBC Trust member for Scotland, they would need to provide justification for that. Both sets of Ministers have the same interest in not wanting to leave the seat empty. The opportunity is primary for a member of a UK body-that is, the BBC Trust. Furthermore, broadcasting remains a reserved matter,

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something that the Calman report was very clear should remain the case, and we are following that principle. On this basis, the UK Government believe it is important to retain the ultimate responsibility for the appointment.

This amendment would place a duty on the Secretary of State only to consult Scottish Ministers in appointing the BBC Trust member for Scotland, rather than seeking their agreement to the appointment. It is our view that this does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment.

Lord Sewel: My Lords, this has been a short debate so I do not even have to thank anybody for taking part in it. I think this is one of those occasions where that well known double positive, which is in fact a negative, comes into play with reference to a fundamental disagreement between the two parties, to which the comment is, "Aye, that'll be right then". I very much think that there is indeed the possibility for that level of disagreement. I know that this looks likes an enormously trivial matter but I ask the noble Baroness at least to reflect on it because if we do not have a clear focus on where responsibility lies-that is, the relevant decision is taken by one person in consultation with another-I am afraid the Government may live to regret that state of affairs.

Eagle-eyed noble Lords will note that I ought to have tabled a similar amendment to Clause 21, which relates to Gaelic broadcasting. However, I did not do so because I was totally incapable of pronouncing the name of the organisation involved.

Amendment 44A withdrawn.

Clause 20 agreed.

Clause 21 agreed.

House resumed.

Welfare Reform Bill

Returned from the Commons

The Bill was returned from the Commons with amendments.

House adjourned at 6.55 pm.


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