This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
KPMG Forensic Annual Scottish Law Lecture.
I would like to begin by offering thanks to KPMG for organising this event tonight, and I am conscious that I follow a distinguished line of previous speakers: the Lord Advocate, the Dean of Faculty, and the Lord Justice Clerk. I appreciate that I am addressing an audience tonight who find themselves caught up in the hurly burly of commerce and who perhaps have to place contemplation of constitutional issues on the back burner from time to time. But many of you will have followed an event of some national significance in May this year – a general election followed by the formation of Britain’s first coalition government since the war. One significant consequence of that event, from my point of view, was my appointment to the post of Advocate General. This was not planned career move and I was taken quite by surprise by the appointment.
It is fair to say that knowledge of the functions of the Advocate General among the laity is patchy to say the least. When my appointment was announced, a reporter from the Annandale Observer, the local paper in my home town, phoned me to confirm the details. I was asked when was the last Liberal Advocate General for Scotland? My answer did not disappoint. I could have added that one third of all the Advocate Generals to date have been Liberal Democrat.
Now, the Advocate General is, for the avoidance of doubt, the Law Officer who advises the UK Government on Scots law.
That is, a Minister of Crown, created by the Scotland Act 1998. That creation was necessary because the devolution settlement meant that the ancient posts of Lord Advocate and Solicitor General for Scotland became part of the new devolved administration and now advise the Scottish Government. The gap that left at UK level was filled by my current post – a post first held by Lynda Clark, now Lady Clark of Calton, then by Neil Davidson, Lord Davidson of Glen Clova. The Office of the Advocate General now consists of a team of some thirty lawyers and support staff who provide the UK Government and all its departments with advice on Scots law. You might have noticed that much of the UK Government’s litigation in Scotland runs under my name. The Office of the Advocate General’s service includes advice on how European Union law and European Convention of Human Rights law apply in Scots law. When, for example the Attorney General (for England and Wales) or the Solicitor General advise on those areas of law, that advice is given jointly with myself. Our respective teams of lawyers work closely together to produce draft advice which we as Law Officers in turn consider as lawyer-ministers. It can also be said that part of my job is to represent the interests of the Scottish legal community to the UK Government.
That is why it is important to engage with the legal profession in Scotland, as facilitated by KPMG tonight, and I look forward to hearing any questions you may have later and a general exchange of views.
A recurring feature of my work, and the work of my office, is the law on human rights. I have personally supported respect for human rights all my life, and specifically, have advocated the incorporation of the European Convention on Human Rights into the law of Scotland so that people in Scotland can vindicate their Convention rights in Scottish Courts. The passing of the Human Rights Act 1998, and the inauguration of a ‘rights culture’ in the UK was a major achievement by the last Labour Government.
I can hardly complain then, when actions by government, and legislation which government has supported, are scrutinised by the courts and sometimes found wanting. That was the necessary and anticipated outcome of the introduction of the Human Rights Act, and incorporation of a human rights control in the devolution settlement. As a Scottish Minister I was subject to this scrutiny. I readily recall the day when I had to suspend the use of all temporary sheriffs in our courts. Now, as a UK Law Officer I find that examination of policy in the light of Convention law constitutes a significant part of the daily work of my office.
It follows from the introduction of the Human Rights Act, and, indeed from the very fact that UK is a signatory to the Convention, that there will be times when a decision of the court forces government to change its policy. And why would I wish that to be any different? What I have in mind, of course, is the recent judgment of the Supreme Court in the Cadder case. Now, although that case is concerned at one level with the criminal law, it is also a decision of constitutional importance, and I would commend it to those of you in this room even if your primary concern is with commercial law. In a complex commercial context, you might well find yourself having to advise clients on the specific rights which are discussed in Cadder – that is the right not to self-incriminate, and the right to seek legal advice.
And there are other cases of constitutional significance currently working their way through the Scottish courts – the Axa Insurance and Imperial Tobacco cases – which are perhaps of more direct relevance to commercial practice. Axa Insurance is about a challenge to the Scottish Parliament’s legislation on asymptomatic pleural plaques (that is, lesions on a person’s lung which are caused by exposure to asbestos but which have no direct effect on that person’s health). A group of insurance companies argue that the Act of the Scottish Parliament may be challenged on common law grounds of review, such as irrationality. An appeal hearing, at which I was represented, has been held and we await the judgment of the Inner House. Whatever the Inner House decides, it will clearly be a judgment of some constitutional significance.
Similarly, Imperial Tobacco has been considered in the Outer House, and it seems likely to proceed to the Inner House on appeal. That case involves a challenge to part of the Tobacco and Primary Medical Services (Scotland) Act 2010 which placed restrictions on the sale of tobacco products in Scotland – a question arises as to whether those provisions relate to a reserved matter under the Scotland Act and are consequently outside the competence of the Scottish Parliament. Again, the constitutional significance of that issue is obvious, and I am following developments closely.
The other event I followed closely was the debate in Scottish Parliament during the passing of emergency legislation to change the law in the light of Cadder. During that debate statements were made by Parliamentarians which were critical of Strasbourg jurisprudence and of the jurisdiction of the Supreme Court. Was too much stress being placed on a Turkish case (Salduz) which was not in point with the system in Scotland? Was the distinctive character of Scots criminal law under threat? Was our criminal law now being damaged by a court “in London”?
But my eye was caught earlier this month by a headline in The Scotsman to an article written by Maggie Scott QC. The headline said “All those in favour of unfair trials, please stand up”. What struck me about that headline was that it drew attention to the real principle at issue. Do we want human rights? Do we want those rights to be adjudicated in our own courts? Then, if so, is it so unreasonable for the courts to insist on securing the right to legal advice before police interview and protection against self-incrimination? Perhaps some of you have encountered non-lawyers in recent weeks who have expressed surprise that such a right was not already part of Scots law. Maggie Scott went on to argue that those of us who seek the development of Convention rights within our legal system should embrace the consequences of these developments.
I agree with that view, and it seems to me that law of Scotland must stand scrutiny by international standards if it is to be something of which we can be proud. Scots law is not simply a totem of our national identity. It is the application of legal principles, which other nations would recognise, in Scotland. If other developed legal systems have better ways of securing rights, such as the right not to self-incriminate, then our system should be examined to see if it can be improved.
Of course it may be argued that the highest criminal court in Scotland did indeed examine the law on access to legal advice while in custody, just a year ago in the McLean case. The law was tested by a bench of seven judges in the High Court who considered the case law of the European Court of Human Rights and concluded, unanimously, that there were sufficient safeguards in our procedures, taken as a whole, to secure the rights of the accused person and ensure a fair trial. It is a judgment which bears reading, and it makes a highly persuasive case that the system in Scotland is, or rather was, fair if viewed as a whole. As a whole, there were protections which seemed effective in avoiding miscarriages of justice.
But, the issue in Cadder was not whether, as a whole, justice is done. The real question is whether one specific right – the right not to incriminate oneself – was protected. The Supreme Court sat as a bench of seven and the lead judgments were given by the two Scots lawyers on the bench, Lord Hope and Lord Rodger – they were in agreement and together make a very persuasive argument about the extent of the obligation on the police to allow access to legal advice and assistance. The fact that a suspect may be detained by the police for six hours without access to legal advice makes it more likely that that person will say something incriminatory which would be used to make it easier to obtain a conviction. That is perhaps the reason why the system of detention introduced following the recommendations of the Thomson Committee in 1975 took the form it did. It is worth looking at the Thomson Committee recommendations closely, as the Supreme Court did in Cadder, referring to this particular passage from the Committee’s report: “Although a person who has been charged with an offence is entitled to an interview with a solicitor, we recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor. It is for this reason that we recommend …… that it will be a matter of police discretion whether to allow the detainee an interview with his solicitor.”
Ultimately, (and at the risk of oversimplification) it would make it easier to obtain a conviction by giving a suspect time in which to self-incriminate.
And the judgment contains some useful discussion about the fundamental nature of the right not to self-incriminate. It is a right which is not only a protection against wrongful conviction or unfair trials, but at another level against the risk of torture and other forms of abuse in custody. Put another way: it is a right which arises from the historical origins of the European Convention on Human Rights, in response to totalitarian regimes of the thirties and forties. And as Lords Hope and Rodger point out, the Strasbourg jurisprudence has been clear and constant on this point, and they are bound to follow that jurisprudence. Lord Rodger of Earlsferry was characteristically emphatic: “…in my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard – which the Committee for the Prevention of Torture regards as “fundamental” – and for suspects to be routinely questioned without having the right to consult a lawyer first. On this matter Strasbourg has spoken: the courts in this country have no real option but to the apply the law which it has laid down.”
Which brings me to another point. In some of the musings and mood music surrounding the Cadder judgment there have been doubts about the reliance by the court on the European Court of Human Rights’ judgment in Salduz v Turkey, a hint by some that that decision was made in the context of a country with a less developed system of justice than our own. I offer no expertise on the justice system in Turkey, although I cannot help but detect a whiff of naive complacency in that criticism.
But it is not at all clear why the circumstances in Salduz are so different from Scotland. Mr Salduz was convicted of an offence related to flying a particular flag from a bridge during a protest, and one might query the fairness of that particular offence. But that was not the issue. The question was whether it was fair to use evidence against him when that evidence was obtained in police custody without access to a lawyer.
Let us imagine a sixteen year old Scots boy, McSalduz perhaps. The accusation is that during a protest march, or perhaps after a football game, he hangs a flag over a bridge as a crowd marches below. One can imagine several flags in a Scottish context which might be regarded as inflammatory and likely to cause a disturbance. The police detain him and are considering charging him with an offence relating to breach of the peace or an offence associated with incitement to religious hatred. He asks to see a lawyer (as his preferred TV viewing has been ‘The Bill’ rather than ‘Taggart’, he assumes he already has such a right) and this request is denied. He protests, but adds that he has a perfect right to fly this particular flag and no-one should be stopping him. The police regard that statement as an admission that it was indeed he who placed the flag over the bridge and they are prepared to use that admission as evidence against him in court.
It is hard to see how, if the European Court were presented with those facts, it could distinguish them from the facts in Salduz, or conclude other than that had the boy had access to legal advice he would have been less likely to incriminate himself.
So, as a result of the Salduz, and Cadder cases, legislation has been put in place which gives a detained person the right to obtain legal advice. There are exceptions, related to practicality and also to the interests of justice, and the legislation provides for those. And, the period of detention has been increased to twelve hours which hardly sounds like a result which a “hardened criminal” would welcome. But there is no reason why it should not reassure an innocent person who is detained by the police.
So, after the furore, is the outcome so terrible? It is certainly a salutary lesson for Scots law. And we are not alone – other European countries, Belgium, France and The Netherlands for example – have had to review their law in the light of the Salduz judgment. Like those countries, we thought our law was fair, but on closer examination we see that it does not measure up to the standards of an international Convention – a Convention whose introduction into Scots law was widely (although, I acknowledge, not universally) welcomed. And would the result have been any better if Mr Cadder had to take his case directly to Strasbourg rather than to the Supreme Court in London?
That is a question which I have pondered since taking part in the Calman Commission on Scottish Devolution. Among other things, the Commission was charged with looking at the Scotland Act and consider proposals to advance the devolution settlement in the light of ten years experience. But the Scottish judges asked us to consider a specific issue, that is the effect of section 57(2) of the Scotland Act and the question of devolution issues being taken to the Supreme Court on points of Scots criminal law. It is a settled part of our system that civil cases are appealed beyond the Court of Session to the House of Lords, or now the Supreme Court (although that jurisdiction was also the subject of a recent report by Professor Neil Walker). But until the Scotland Act 1998 came into force, the High Court of Justiciary was the final port of call in any criminal appeal.
By including the acts of the Lord Advocate as prosecutor within the range of things which may give rise to a devolution issue, the Scotland Act gave the Supreme Court jurisdiction to consider Scots criminal law insofar as it related to a devolution issue. That is, section 57(2) provides, among other things, that a member of the Scottish Executive (which includes the Lord Advocate) has no power to do any act insofar as the act is incompatible with Convention rights. Any act of the Lord Advocate which breaches the Convention is therefore ultra vires. And a question of whether any such act is ultra vires a devolution issue which may be appealed to the Supreme Court.
So, the Supreme Court, or previously the Judicial Committee of the Privy Counsel, have been considering Scottish criminal cases, through the window of “devolution issues” since 1999. It is, as you know, a court which by convention always includes at least two Scottish judges, but which does not necessarily sit with a Scottish majority. In the civil context, one can see the attraction of appeals lying to a court outside Scotland which, while guided by Scottish judges also includes judges who gained their experience in other jurisdictions, and which will ensure some consistency in interpretation of commercial and taxation statutes which apply across the United Kingdom.
But in the criminal context there are arguments to be made either way. As I said, this issue was drawn to the attention of the Calman Commission but the Commission considered that to be beyond its remit.
Not unsurprisingly, since taking office, I have taken a keen interest in the preparation of the forthcoming Scotland Bill, which aims to give effect to the recommendations of the Calman Commission. It also presents an opportunity to consider other reforms and in this context my office issued an informal consultation paper and I asked Sir David Edward to convene an expert group to consider this issue and to take account of responses to the consultation paper.
There were seventeen responses to the discussion paper. In essence, the question the expert group was considering was whether the Supreme Court should have jurisdiction to consider cases arising from criminal proceedings in Scotland. As I said, any act of the Lord Advocate in her role as head of the system of criminal prosecution may be found to be ultra vires by virtue of section 57(2) of the Scotland Act. But the same act would also be unlawful because of section 6(1) of the Human Rights Act. However, unlike human rights issues in England, Wales and Northern Ireland, in Scotland, there is no appeal to the Supreme Court on a criminal matter under the Human Rights Act – but rather the jurisdiction of the Supreme Court in respect of Scots criminal cases arises because of the legislation on devolution. Thus if the Scotland Act route to the Supreme Court were closed off, there would be no appeal that Court from the High Court of Justiciary. The only route of appeal would be directly to Strasbourg. It can be argued that it is essential that there is a uniform standard of protection of Convention rights throughout the UK, and the Supreme Court is there to ensure that. And it can also be argued that protection of human rights is an inherent, and fundamental, element of the devolution settlements in Scotland and elsewhere. If the only route of appeal was to Strasbourg from the High Court, then not only would appellants be denied a timely and effective remedy, but where there was a breach of the Convention, it would be the United Kingdom, as the member of the Council of Europe, which would be liable.
It might also be unsatisfactory if the Lord Advocate became the only Scottish Minister who was not fully answerable under the devolution settlements for all her actions.
On the other hand, the vires control relates to her position as a prosecutor – a situation which is not comparable to any other Minister in the United Kingdom, Scottish or otherwise She is in charge of the only prosecution service in the UK which is subject to a vires control on its actions as well as liability under section 6 of the Human Rights Act.
And many people will think it odd that a consequence of devolution for Scotland is that the Scottish criminal courts, whose autonomy was guarded, proudly, for so long, is compromised by referral to a court in London, on which the majority of judges need not be qualified in Scots law.
In addition, the consultation exercise did reveal some concern about the delay which referral to the Supreme Court might add to the system. Certainly, consideration of devolution issues adds to the work of the Sheriff Court and the High Court. It remains unclear, however, whether any significant extra delay is caused by the additional step of taking that issue to the Supreme Court. On one view, there are relatively few cases which are considered by the Supreme Court, but on another view, each of these cases represents an additional anxiety and source of distress to victims and witnesses, and an additional strain on the resources of the Crown Office and Procurator Fiscal service.
One solution, therefore would be to remove the Lord Advocate’s prosecutorial function from the ambit of section 57(2) of the Scotland Act. Her actions would be still be scrutinised by the High Court of Justiciary which is in turn obliged to give effect to Convention rights. And she would, in the same way as her counterparts elsewhere in the UK, be subject to section 6 of the Human Rights Act.
If the Lord Advocate’s retained functions as a prosecutor were removed from section 57(2), a question would still arise at to whether the jurisdiction of the Supreme Court is maintained. That is, do we amend the Scotland Act so that the Supreme Court may continue to have jurisdiction over Convention law, and EU law, issues arising in Scottish prosecutions, in the same way that it has jurisdiction over those issues in other parts of the UK?
These are complex issues and, as the responses to the consultation have shown me, capable of producing a wide range of views all of which have strengths and weaknesses. That Expert Group, chaired by Sir David Edward, has now reported to me, and I am considering their recommendations. In essence, it seems to me that the issue is: should the acts of the Lord Advocate in her role as head of the prosecution service in Scotland be subject to devolution controls, and, if not, should there be some means of recourse to the United Kingdom Supreme Court in cases where human rights issues of constitutional importance are raised? What I would say at present is that in dealing with criminal cases, the Supreme Court is not given general jurisdiction over Scots criminal law, and in its judgments it has made that point clear. Its jurisdiction in this context is constitutional, ensuring compliance with the devolution settlement and with the United Kingdom’s international obligations. I see no problem with having a court which is in effect a “constitutional court” for the United Kingdom.
The Scotland Act, the other devolution Acts, the Human Rights Act, all give rise to constitutional questions beyond the narrow circumstances of particular cases. And it is hardly an unusual or novel institution. In fact, the existence of a constitutional court could be described as one of the characteristics of a mature democracy. Perhaps the oldest is the United States Supreme Court, which has led the world in constitutional law since its inception although its jurisdiction is far from exclusively constitutional. It was the Austrians who built the first purely constitutional court in 1920, under the influence of the famous Austrian legal philosopher, Hans Kelsen. About 56 countries have a separate constitutional court – I say ‘about’ because new courts are being established all the time. Kosovo’s constitutional court, for example, is a more recent addition. But the more established examples include the Conseil Constitutionnel in France, the Bundesverfassungsgericht in Germany, and of course the Supreme Court of the United States.
It is to say the least not unusual for a mature democracy to have established a constitutional court and for governments to take cases and to defend cases in that court; without any suggestion that the whole edifice of the State will collapse under the strain. Similarly, it is not a weakness of the European Union that its Member States are regularly involved in litigation in the European Court of Justice. The Treaties comprising the European Union, and the legislation created under them, form a complex body of law, which sometimes – often – requires adjudication. Ever since its accession, the UK has been involved in ECJ litigation, without necessarily implying any lack of commitment to the European Union. Similarly, if one looks at comparable jurisdictions to the UK throughout the world, litigation between different levels of government is not unusual. In federal systems – Canada, Australia, Germany, the United States – there is a constant stream of constitutional cases where, for example, the powers and functions of different levels of government are in dispute. In those countries, recourse to a court with constitutional expertise is a fundamental strength, and a sign of constitutional maturity.
It might come as a surprise to a lawyer from one of those jurisdictions to know how rarely the UK’s devolution arrangements have been considered in the courts over the last decade. Perhaps that is because the arrangements have on the whole worked well; that the three devolved legislatures in the United Kingdom, Scotland, Wales and Northern Ireland, have never attempted to pass legislation which is beyond their powers. Has the UK Government never seen the need to challenge the vires of that legislation?
Of course if the UK’s fundamental interests were challenged by a devolved administration or legislature, one might expect to see a robust response, either in court, or, more likely, in the shadow of the court.
In the case of the Scottish settlement, section 33 of the Scotland Act provides for the Law Officers, including the Advocate General, to refer an Act of the Scottish Parliament to the Supreme Court. If such a referral is made, then the whole Act does not proceed to Royal Assent, although there may only be one offending provision. So, the outcome of a referral would be that a whole Act, perhaps most of it beneficial or even essential, is being held up while one provision is disputed.
Well, there is a Scotland Bill to be brought before Parliament in the very near future. And I would want to consider whether than might provide an opportunity to address the matter. That is, whether we should provide for the referral of single provisions, or several provisions, of an ASP, to the Supreme Court, without jeopardising other, uncontroversial, measures in that ASP.
My assumption in 1998 when the Scotland Act was passed was that there would be referrals to the Judicial Committee of the Privy Council, or, now, to the Supreme Court, on a reasonably regular basis. In the light of experience in other countries, I anticipated a number of cases which would clarify the devolved – reserved boundary; and that this would become an established and accepted part of the post-devolution landscape.
Changing the basis on which referrals can be made may facilitate that process. Far from such litigation being confrontational, joint submissions by the respective Law Officers could be a sign of a maturing devolution settlement and of mutual respect, bringing greater certainty and clarity. And that surely must be beneficial to any legal regime.