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Scotland Bill

First, let me associate the official Opposition with the Minister's remarks about Paul McBride. I also thank the right hon. and learned Member for North East Fife (Sir Menzies Campbell) for reminding the House of the importance of the Supreme Court in ensuring that institutions of government are exercised in accordance with the rule of law. That is a vital element of our constitution and one that must not go unheard in the House today. Lords amendments 9 and 19 to 25 collectively omit clause 17 from the Bill and add new clauses before clauses 38 and 41 in respect of the relationship between the Supreme Court and the functions of the Lord Advocate in criminal prosecutions in Scotland, Acts of the Scottish Parliament thereby affected, and the role of the Advocate-General for Scotland. Lords amendment 19 amends the Criminal Procedure (Scotland) Act 1995 to provide that the Advocate-General may take part as a party in criminal proceedings in Scotland in so far as they relate to a compatibility issue over the actions or omissions of a public authority relating to convention rights or EU law or over whether an Act of the Scottish Parliament or any provision thereof raises issues of compatibility with EU law or convention rights in Scottish criminal proceedings. Lords amendment 20 makes further amendment to the 1995 Act to provide that when a compatibility issue arises in criminal proceedings in a court, other than any High Court of Justiciary proceeding heard before two or more judges, compatibility issues may be referred to the High Court of Justiciary. That may be required by the Lord Advocate or by the Advocate-General, if he is a party to the proceedings. In turn, the High Court of Justiciary may refer a compatibility issue to the Supreme Court, and may be required to do so by the Lord Advocate or by the Advocate-General, if he or she is a party to the proceedings. Lords amendment 20 makes it clear that the role of the Supreme Court is restricted to determining the compatibility issue, whereby the case is then remitted back to the High Court of Justiciary for determination in the light of the Supreme Court ruling on the compatibility issues. That amends the relationship between the two courts, and while it preserves the ability of the Supreme Court to make entirely authoritative and decisive rulings on questions of the compatibility of the decisions of the Lord Advocate in relation to Scottish criminal proceedings and the prosecution system, it also ensures that the High Court of Justiciary is the judicial forum in which any convictions required to be reduced in the light of such a compatibility ruling are reduced. Lords amendment 22 introduces a new clause that creates a time limit for application to the High Court of Justiciary in some cases, and to the Supreme Court in more serious criminal cases, of 28 days following the initial decision or, in the latter case, against the refusal to give permission for a compatibility reference. However, as the Minister suggested, that time limit can be extended by either court on the ground of equity. Lords amendment 23 introduces a further new clause that obliges the Secretary of State to hold a review of those new processes three years after the entry into force of the new clauses that might include the requirement for prior certification. The amendments deal with the constitutional implications of the Supreme Court decisions in Cadder v. Her Majesty's Advocate and in Fraser v. Her Majesty's Advocate. In November 2010, an expert group appointed by the Advocate-General for Scotland produced recommendations on the revision of the devolution settlement and its handling of the Lord Advocate's role in criminal proceedings. The group recommended preserving the jurisdiction of the Supreme Court over that area against the prevailing wisdom, if we can term it that way, of the First Minister and the Scottish Justice Secretary, but refining the process of reference to that court. The Scottish Government established their own review group chaired by Lord McCluskey which endorsed the continuing reference of some criminal cases to the Supreme Court on matters of compatibility with EU law and convention rights. The McCluskey review, however, suggested introducing a requirement of prior certification by the High Court of Justiciary before a case could be referred on appeal to the Supreme Court. That proposal was not endorsed in the other place because of arguments that the processes in Scotland and in England and Wales were not comparable, as there was no general right of appeal to the Supreme Court in Scottish criminal cases, unlike their equivalents in England and Wales. In particular, my noble friend Lord Boyd made a compelling argument that a requirement of prior certification could result in people losing the right to protection under EU law and the convention rights enshrined in the Scotland Act 1998 that they enjoyed. The requirement for prior certification by the High Court of Justiciary before seeking direct leave was further questioned by the Law Society of Scotland and by the Faculty of Advocates. The amendments remove the Lord Advocate from the scope of section 57 of the Scotland Act in relation to the determination of devolution issues by the Supreme Court, and create a new category of compatibility issues that determine the Lord Advocate's compliance with EU law obligations or those arising from convention rights in Scottish criminal proceedings. The new process is therefore more efficient and less cumbersome than the existing one. The amendments strike the right balance between protecting the existing rights of individuals in criminal cases while affording the High Court of Justiciary the ability to make final determinations on convictions in the light of Supreme Court rulings on compatibility.