Scotland Bill

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, "““an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time””." So one must ask: is there a need for a certificate from the Appeal Court? The main argument presented by the noble and learned Lord, Lord McCluskey, is that it is necessary in order to achieve consistency or parity with the position in England, Wales and Northern Ireland. But, as the noble and learned Lord, Lord Boyd, has said, is this comparing like with like? The Appeal Courts in those other jurisdictions may be asked to sanction appeals to the Supreme Court on a wide variety of issues concerned with any aspect of criminal law and procedure. In the case of Scotland, on the other hand, the Supreme Court has a special jurisdiction to deal with issues confined to alleged breaches of human rights, and it is for this reason that the group under Sir David Edward rejected any attempt to draw a parallel. The group confirmed that this was the case when responding to questions from the review group under the noble and learned Lord, Lord McCluskey. 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 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.