HE’S not one for pulling his punches. But even by his own standards, Lord McCluskey’s recent attack on the Scottish Parliament was particularly stinging.
Writing in Justice Matters, a pamphlet produced by the Scottish Conservatives, the former solicitor general revisited his critique of the Scottish Government over its controversial plans to scrap corroboration – the centuries-old principle which requires two pieces of evidence to bring a case to trial.
But this time he went further, likening the Scottish Parliament to a “hyperactive teenager” seeking to meddle in the justice system through a “tsunami” of legislation.
“To make such changes by politically whipping legislation through an inexpert legislature against the advice of the judiciary and the lawyers practising daily in the criminal courts is extremely dangerous,” Lord McCluskey wrote.
Had the parliament not been so “hyperactive” in recent years, the system would not be facing the delays which “threaten to impair the administration of justice in Scotland,” he added.
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While Lord McCluskey’s tone is typically barbed and his language colourful, he does make a valid point about the relationship between the parliament and the administration of justice. Dangerous dogs do not cease to be dangerous dogs when you pass laws against them, he notes.
There is undoubtedly a tendency by this government to address issues of the day through legislation, when no legislation is required.
A case in point is the flawed Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which Scottish Labour leader Jim Murphy has pledged to scrap if his party wins the next Holyrood election in 2016.
Last month it emerged that almost half of those taken to court in 2014 under the legislation were acquitted.
Lord McCluskey is right to say that the “rush to legislate does not solve all problems”. He is also correct to raise the issue of the parliament’s committee system, which many believe to be woefully inadequate in scrutinising proposed legislation.
Of course, Lord McCluskey’s biggest grievance is the push to remove corroboration, which began under former justice secretary Kenny MacAskill and continues with his successor Michael Matheson.
The proposal has its backers, including the police and the Lord Advocate, who believe it will help secure more convictions in rape cases.
Given the opposition from members of the legal fraternity, however, it remains to be seen whether this particular piece of legislation makes the statute books.
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