THE former Lord Justice-Clerk, Lord Ross, yesterday criticised the tone of Lord McCluskey's outspoken attack on the Government's Crime and Punishment Bill in the House of Lords.
However, support for what was seen as a move to bring the concerns of the legal profession at grass-roots level over the Bill into a high-profile arena was welcomed by solicitors.
While agreeing with some of the points raised by the judge, Lord Ross said he had been ''rather dismayed'' by the speech and warned of its dangers.
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Speaking from his home in Edinburgh, Lord Ross said: ''I am not happy at a serving judge making a speech of this kind. Judges must be non-political.
''If a serving judge is a member of the House of Lords, obviously it is quite acceptable he should speak in the House of Lords on legal reform. But if the judge is only a member of the House of Lords because he was previously an active politician, which is the case with Lord McCluskey, I think he must be very careful that what he says can give the impression he is speaking as a former politician, rather than a serving judge.
''Indeed all judges, particularly those who have been active politically, should avoid the use of intemperate or extravagant language when they are criticising legislation.
''I prefer the approach displayed by Lord Hope and Lord Clyde. I would suspect what they have said is likely to have been more effective than Lord McCluskey's diatribe.''
Lord Ross, who was until his recent retirement Scotland's second most senior judge, added: ''Of course I agree with some of the points he has made, although not the language in which he made them.''
The retired judge said he found common ground with his former colleague on the issue of mandatory life sentences and increased powers for sheriffs.
However, he stressed he did not agree with Lord McCluskey's views on the release of convicted prisoners.
''I have never been happy with the provisions which were introduced in the Prisoners and Criminal Proceedings Scotland Act 1993 and I think I am on record as saying I have found sentencing at times being something of a charade in the sense that I was imposing a sentence of so many years although those who know the system in court, including the prisoners, would know he would only serve half of the sentence.''
He found agreement again on Lord McCluskey's criticism of consultation over the Bill.
''I do agree with him that there was inadequate consultation. If important changes are to be made to the existing law, one would like to think there was full consultation.''
Lord Ross gave an indication of opposition within the legal profession to some of the changes.
''On the main issue of whether convicted prisoners could serve longer, I am not alone,'' he said.
Sounding a final warning that judges should stay out of politics, he added: ''It is the politicians who decide what the law is going to be.''
Scotland's two main legal bodies, the Law Society of Scotland and the Faculty of Advocates, restated opposition to the Bill but were guarded over their response to Lord McCluskey's speech.
The secretary of the Law Society of Scotland, Mr Douglas Mill, said: ''We have deep concerns about the proposals for automatic sentences and other aspects of the Bill.
''We have made representations to Parliament throughout the passage of the Bill and will continue to do so.''
A spokesman for the Faculty of Advocates said: ''The Faculty had the opportunity of expressing a view on the Crime and Punishment Bill at White Paper stage. It did not express its views in the same language as Lord McCluskey.''
He stressed there was concern among advocates over the short period of consideration of the Bill.
However, Lord McCluskey's outspoken attack found strong support from the Bar Associations of both Edinburgh and Glasgow.