Reform body's ideas make the crime bill – but hit rate is low

Published on Sunday 8 March 2009 18:57

WITH almost perfect timing, the Scottish Government's Criminal Justice and Licensing Bill arrived on Friday, carrying some good news for Scotland's legal reform body, the Scottish Law Commission (SLC).

In the bill was legislation formulated on the back of three SLC reports that had not been implemented by the government. The number of outstanding recommendations had, only days before, elicited concerns from the commission's chairman, Lord Drummond Young.

His criticism, made in the preamble to the SLC's 2008 annual report, painted a picture of a devolved government lagging behind its law reform body by failing to use its recommendations to formulate legislation. The lag, the commission said, put Scotland at risk of falling behind other similarly sized jurisdictions without a vast array of case law to aid progression of the legal system.

The commission acknowledged that the number of outstanding reports could in part be due to the time it took to bring a bill before parliament. This view is lent some credence by the fact that half of the reports not yet implemented were submitted after December 2006.

On Friday, Malcolm McMillan, the commission's chief executive, said he "warmly welcomed" the bill announcement. However, earlier in the week he had been less enthusiastic, echoing the concerns of his chairman to The Scotsman.

"Certainly the government have implemented some important reports since devolution, but nevertheless, now is the time to say that there was a fairly high implementation rate, pre-devolution, in the Westminster Parliament and at this point into devolution it is reasonable to say there is concern on our part because the rate has gone down quite a bit," he said.

A glance at the recommendations made by the commission shows that since May 1999 it has issued 32 reports on various points of law. Of the reports that fall under the sole jurisdiction of the Scottish Parliament, ten remain without legislation following the announcement of the Criminal Justice Bill, which includes some commission recommendations on Crown appeals, the age of criminal responsibility and the principle of diminished responsibility in criminal trials.

The list of outstanding recommendations includes advice on the limitation of the actions for claims in personal injury cases, as well as a review of the law relating to psychiatric injury – both of which were referred to the commission by Scottish ministers.

In a statement made after Friday's publication of the bill, Kenny MacAskill, the justice secretary, exuded conciliatory warmness towards the commission.

"I am pleased to announce we are also legislating so that the Crown will be permitted to appeal against court decisions that end solemn trials without a jury verdict," Mr MacAskill said. "This will enable retrials where the court upholds the Crown's appeal.

"In the main, the provisions implement the recommendations of last year's Scottish Law Commission report on this subject. I am delighted to make this announcement and to take forward the implementation of this important SLC report within a matter of months."

Acknowledging the previous criticism of the government for its lack of action, Mr MacAskill continued: "I know there have been some recent concerns expressed about the record of the Scottish Parliament in implementing SLC reports. That is one reason why I am pleased to announce the bill includes provisions implementing two further SLC reports."

"As we announced a few days ago, the bill will raise the age at which children can be prosecuted in the adult courts from eight to 12. This takes forward the recommendation of a 2002 SLC report.

"At the same time, we also are legislating to end the system of 'unruly certificates', under which accused children can be kept in adult prisons alongside hardened criminals.

"We are also implementing the SLC 2004 report relating to insanity and diminished responsibility in criminal proceedings. The provisions modernise the law in this important area."

Then, in an outbreak of legal bonhomie, he added: "I would like to thank the Scottish Law Commission for their thoughtful work on all of these issues."

Even accounting for the new legislation, the outstanding recommendations represent a reduction in the commission's hit rate when compared with the ten years pre-devolution. Between 1990 and 1999, it completed 35 reports and only four did not move into legislation.

Mr McMillan was keen to stress his organisation had a good relationship with the Scottish Government, but called for a formalisation of the SLC's submission procedure so that more certainty could be brought to its work.

"Our concern is, at the moment, there isn't a duty on the Scottish Government to make a public response to each and every report we make," he said.

"We are not necessarily expecting them to agree with everything or implement everything, but if they considered everything seriously and made a public reply, that would at least increase government response to our reports.

"If there were a more firm system to either take up our reports, or if not, say why not, that would at least be a matter of public accountability."

He added there was no convention in place for the SLC to flag up outstanding reports.

"It's up to the government to review them on a periodical basis, but we do have discussions with government officials and meet with the Cabinet secretary now and again and raise issues of previous reports … The older a report gets the less useful it becomes."

&#149 A full list of the outstanding SLC reports and implemented recommendations is available at www.scotlawcom.gov.uk.