Scots Criminal Law (Integrity) : Scottish Parliament speech 27 October 2011

Johann Lamont : I can see how cheery everybody is at that prospect, yet again. I am beginning to take it personally.
I thank Lord McCluskey and his team for their report.
I recognise that it is an important contribution to a broader debate about the justice system.
I was struck by the history lesson on Scots law that the Cabinet Secretary for Justice gave us in his opening speech, and by his comments on the critical duty that we have to defend the integrity of Scots law.
It is a concern that we can shift from having pride in the development of the legal system over time to reflecting an instinctive chauvinism for anything that happens to be Scottish—the idea that, because something is Scottish, it must be good.
The reality is that the legal system, like many other things, is a living thing that is shaped by people.s experiences over a long time.
It is not our job simply to preserve everything as it is and ever was, but that is a way of sustaining that system of justice.
The reality is that, historically, we cannot be complacent about ordinary Scottish people.s experience of the judicial system, which will have changed over time directly because of that experience.
Historically, people have experienced a system that was not fair.
It did not offer access and it was not perfect.
If the cabinet secretary starts from a position that it is as it is and will ever be thus—that is, perfect—we will not be able to respond to the concerns of individuals in our communities.

Kevin Stewart: Will the member give way?

Johann Lamont: I will just make this point.
I reflect on Maureen Watt’s concerns about individual judgments.
I share her concerns, and I have shared the anguish of individual constituents who are simply bewildered by the decisions that the courts make.
However, that applies at every level of the court system; it is not unique to the Supreme Court.
It is a challenge for all of us to sustain the independence of the judicial system while we understand that people feel frustrated by individual findings in individual courts.
We have to work through that and give people confidence, but the issue is not particular to the Supreme Court, so it should not be considered in those terms.
To use Stewart Maxwell's favourite word, I was "astonished" by the way in which the cabinet secretary responded to my intervention about the extent to which the issue, no matter how important it is, reflects the priorities of the people whom we represent.
It is not in any way to diminish the work of the legal experts who produced the report to say that we should urgently address the concerns about the chaos in the prosecution service.
It would be good to find the Cabinet Secretary for Justice as exercised by those concerns as he has been by his particular interpretation of what is happening in the Supreme Court.
In order to resolve his concern about my intervention, perhaps he will agree to make an urgent statement to the Parliament next week on the serious implications of what is happening in what is a very stretched service, and the implications for access to justice and people's confidence in the justice system.
I will welcome his contribution if he commits himself to making that statement.
I respect the senior judges and others who have contributed to the debate, but I would take the cabinet secretary's scolding—he returned to it three times—a little easier if it was not delivered by a Cabinet Secretary for Justice who has abused Scots justice, berated "ambulance-chasing" lawyers and threatened to withhold money from the courts.
In welcoming Lord McCluskey to listen to this afternoon.s debate, I wonder whether he might be rather surprised by the way in which his report is being spun by the cabinet secretary and, indeed, by the First Minister.
The reality is that the report rebuts the Scottish Government,s central contention when the issue was first raised—that the Supreme Court should not have a role in human rights cases and that it should not be higher than the apex of the current court system.

Jim Eadie (Edinburgh Southern) (SNP): Does the member agree that the limited jurisdiction of the Supreme Court as recommended in Lord McCluskey’s report should be made explicit in the Scotland Bill, and will she use her influence with her Westminster colleagues to ensure that that proposition is taken forward?

Johann Lamont: We have said that all of Lord McCluskey’s recommendations should be interrogated closely and debated.
I do not see why we need to jump to proposing that the issue be dealt with immediately in the Scotland Bill, particularly given that learned people in the legal profession do not speak with a unified voice on this issue.
Obviously, everyone agrees with the independence of the Scottish justice system. However, Lord McCluskey does not say that that independence has been undermined. Indeed, Lord Hope ignored the court's apex structure in the Fraser case and recognised that he did not have general jurisdiction.
It is important that any assertion that the justice system.s independence has been undermined does not become fact.
If there is any evidence that that is the case, the cabinet secretary should tell us which of the accepted canons of Scots law have been overturned to justify the statement that the system.s independence has been undermined.
Even his own report did not find that.
It is also clear that Lord McCluskey’s report does not endorse the argument—which I acknowledge has not been marshalled today, although it has been in the past—that it would be better to have a Scottish supreme court or to have people lingering in the courts of Strasbourg waiting for decisions that it would be for them to go to London.
It was all about geography rather than the rights of the person who is seeking vindication.
Surely the important test is to have efficient access to justice and an effective justice system for Scottish citizens and communities.
We acknowledge that there is an interesting and important debate to be had about certification, but we should also point out that the view that is set out in the McCluskey report does not reflect the views of the whole legal establishment.
It is nonsense to say that there is a unified view on the matter, so we will want to be persuaded, on the balance of the arguments, of what the best approach might be.
I have to say that cabinet secretary's approach to this particular aspect reflects his approach to the whole matter.
When he says to me, in his most reverential tone, that we must respect the views of a serious and senior legal figure when he argues for certification, what he actually means is that we should listen to senior legal voices if they agree with him.
That is simply unacceptable.

Derek Mackay: Given that the member has returned to the issue of the cabinet secretary’s style, can she suggest which Labour leadership candidate Kenny MacAskill should style himself on? Should he style himself on, for example, Ian Davidson, who threatens to give people who disagree with him a doing—allegedly?

Johann Lamont: I believe that the cabinet secretary berated me for not taking the issue seriously.
He might want to have a word with his own back bencher in that regard.
As far as certification is concerned, we need to understand whether it might have any unintended consequences that have not been thought through and we need to realise that there are complexities to deal with.
I certainly feel that the cabinet secretary has gleefully picked on this particular issue because it gives him threadbare vindication for his and the First Minister.s entirely inappropriate and disproportionate behaviour in the past.
Having caused a huge fuss, they have had to search manfully through the report to find some issue that they can hold up and say must be considered.
I agree that the issue should be debated, but it does not merit the diatribe to which the legal profession and others were subjected.
The cabinet secretary says that we need to reflect on and listen to what those in the legal profession who understand these things have to say, but he must understand how appalled those people were by the tone that he and the First Minister adopted. Their comments were not worthy of back benchers, never mind people in the offices that they hold.
We welcome the report and any debate that gives us an opportunity to think about how we can have a justice system that people have confidence in and which gives them access to justice.
As I have said, we all know that the courts make decisions that people find bewildering, but there is no suggestion that Supreme Court decisions are not rooted in interpretation of the ECHR.
There is a bigger challenge for all of us: it is to ensure that we have a justice system that is properly resourced and in which people know they can get a fair hearing and know that those who disrupt their communities and create victims are held to account.
That is the bigger debate that we should be having, rather than one that is predicated on the false premise of an attack on the independence of the judicial system that is merited neither by what is happening nor by the findings of Lord McCluskey.