Session 2010 - 12
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Other Bills before Parliament

Lords Amendments to the Scotland Bill


 
 

 

LORDS amendments to the

Scotland Bill

[The page and line references are to HL Bill 79, the bill as first printed for the Lords.]

Clause 3

1

Page 3, line 25, leave out from “powers)” to end of line 34 and insert “after

 

subsection (1) insert—

 

“(1A)    

Subsections (2) to (11), except subsection (9), apply also to the

 

power of the Scottish Ministers to make an order under section

 

12.””

Clause 7

2

Leave out Clause 7

Clause 10

3

Leave out Clause 10

Before Clause 11

4

Insert the following new Clause—

 

         

“Continued effect of provisions ceasing to be within legislative competence

 

(1)    

In section 30 of the 1998 Act (legislative competence: supplementary) after

 

subsection (4) insert—

 

“(5)    

Subsection (6) applies where any alteration is made—

 

(a)    

to the matters which are reserved matters, or

 

(b)    

to Schedule 4,

 

    

(whether by virtue of the making, revocation or expiry of an Order

 

in Council under this section or otherwise).

 

(6)    

Where the effect of the alteration is that a provision of an Act of the

 

Scottish Parliament ceases to be within the legislative competence

 
 
Bill 334 55/1

 
 

2

 
 

of the Parliament, the provision does not for that reason cease to

 

have effect (unless an enactment provides otherwise).”

 

(2)    

After section 29(4) of that Act (legislative competence) insert—

 

“(5)    

Subsection (1) is subject to section 30(6).”

 

(3)    

In section 92 of that Act (Queen’s Printer for Scotland), after subsection

 

(4A) (inserted by section 16) insert—

 

“(4B)    

If, following an alteration such as is mentioned in section 30(5)—

 

(a)    

subordinate legislation is made, confirmed or approved

 

under a provision which continues to have effect by virtue

 

of section 30(6), and

 

(b)    

the making, confirmation or approval would be within

 

devolved competence but for the alteration,

 

    

the subordinate legislation is to be regarded for the purposes of this

 

section as being made, confirmed or approved within devolved

 

competence.””

Clause 12

5

Leave out Clause 12

Clause 13

6

Leave out Clause 13

Clause 15

7

Page 10, line 7, leave out first “the”

8

Page 10, line 7, leave out second “the”

Clause 17

9

Leave out Clause 17

Clause 22

10

Page 15, line 8, leave out “Scottish Crown Estate Commissioner” and insert

 

“Crown Estate Commissioner with special responsibility for Scotland”

11

Page 15, line 13, leave out “Scottish Crown Estate Commissioner” and insert

 

“Crown Estate Commissioner with special responsibility for Scotland”

Clause 25

12

Page 18, line 16, after “of” insert “regulations under section 86 or”

13

Page 18, line 18, after “the” insert “regulations or”

14

Page 18, line 25, at end insert—

 

“( )    

Section 86 (speed limits for particular classes of vehicles) is amended as

 

follows.

 

( )    

For “Secretary of State” in each place substitute “national authority”.


 
 

3

 
 

( )    

After subsection (6) insert—

 

“(7)    

The national authority in this section—

 

(a)    

as respects the driving of vehicles on roads in England and

 

Wales, is the Secretary of State;

 

(b)    

as respects the driving of vehicles on roads in Scotland, is

 

the Scottish Ministers.

 

(8)    

Regulations made by the Scottish Ministers under this section are

 

subject to the affirmative procedure.

 

(9)    

Before making any regulations under this section the Scottish

 

Ministers must consult with such representative organisations as

 

they think fit.””

15

Page 19, line 8, at end insert—

 

“( )    

In section 134(4) (provision as to regulations under sections 86 and 140)

 

after “Regulations made” insert “by the Secretary of State”.”

Clause 26

16

Page 19, line 15, leave out paragraph (b) and insert—

 

“(b)    

omit paragraph (f) (sections 86(2) and 88(1) and (4)).”

Clause 27

17

Leave out Clause 27

After Clause 37

18

Insert the following new Clause—

 

“Reports on the implementation and operation of this Part

 

(1)    

The Secretary of State must—

 

(a)    

make reports on the implementation and operation of this Part (see

 

subsection (5)),

 

(b)    

lay a copy of each report before both Houses of Parliament, and

 

(c)    

send a copy of each report to the Scottish Ministers, who must lay a

 

copy of it before the Scottish Parliament.

 

(2)    

The Scottish Ministers must—

 

(a)    

make reports on the implementation and operation of this Part (see

 

subsection (5)),

 

(b)    

lay a copy of each report before the Scottish Parliament, and

 

(c)    

send a copy of each report to the Secretary of State, who must lay a

 

copy of it before both Houses of Parliament.

 

(3)    

A report must be made under each of subsections (1) and (2)—

 

(a)    

before the end of the period of one year beginning with the day on

 

which this Act is passed, and

 

(b)    

thereafter, before the end of each subsequent period of one year

 

until the final reports are made under subsection (4).

 

(4)    

Final reports must be made on or as soon as practicable after—


 
 

4

 
 

(a)    

1 April 2020, or

 

(b)    

if later, the first anniversary of the day on which the last of the

 

provisions of this Part comes into force.

 

(5)    

A report on the implementation and operation of this Part must include—

 

(a)    

a statement of the steps which have been taken, whether by the

 

maker of the report or by others, since the making of the previous

 

report (or, in the case of the first report, since the passing of this Act)

 

towards the commencement of the provisions of this Part,

 

(b)    

a statement of the steps which the maker of the report proposes

 

should be taken, whether by the maker of the report or by others,

 

towards the commencement of the provisions of this Part,

 

(c)    

an assessment of the operation of the provisions of this Part which

 

have been commenced,

 

(d)    

an assessment of the operation of any other powers to devolve taxes

 

to the Scottish Parliament or to change the powers of the Scottish

 

Ministers to borrow money, and of any other changes affecting the

 

provisions inserted or amended by this Part,

 

(e)    

the effect of this Part on the amount of any payments made by the

 

Secretary of State under section 64(2) of the 1998 Act (payments into

 

the Scottish Consolidated Fund), and

 

(f)    

any other matters concerning the sources of revenue for the Scottish

 

Administration (within the meaning of section 126(6) of the 1998

 

Act) which the maker of the report considers should be brought to

 

the attention of the Parliament of the United Kingdom or the

 

Scottish Parliament.”

Before Clause 38

19

Insert the following new Clause—

 

“Convention rights and EU law: role of Advocate General in relation to criminal

 

proceedings

 

(1)    

The Criminal Procedure (Scotland) Act 1995 is amended as follows.

 

(2)    

For the italic heading before section 288A substitute “Convention rights

 

and EU law compatibility issues, and devolution issues”.

 

(3)    

After that heading insert—

 

“288ZA 

 Right of Advocate General to take part in proceedings

 

(1)    

The Advocate General for Scotland may take part as a party in

 

criminal proceedings so far as they relate to a compatibility issue.

 

(2)    

In this section “compatibility issue” means a question, arising in

 

criminal proceedings, as to—

 

(a)    

whether a public authority has acted (or proposes to act)—

 

(i)    

in a way which is made unlawful by section 6(1) of

 

the Human Rights Act 1998, or

 

(ii)    

in a way which is incompatible with EU law, or

 

(b)    

whether an Act of the Scottish Parliament or any provision

 

of an Act of the Scottish Parliament is incompatible with any

 

of the Convention rights or with EU law.


 
 

5

 
 

(3)    

In subsection (2)—

 

(a)    

“public authority” has the same meaning as in section 6 of

 

the Human Rights Act 1998;

 

(b)    

references to acting include failing to act;

 

(c)    

“EU law” has the meaning given by section 126(9) of the

 

Scotland Act 1998.”

 

(4)    

Section 288A (rights of appeal for Advocate General: devolution issues) is

 

amended as follows.

 

(5)    

In the heading, before “devolution issues” insert “compatibility issues

 

and”.

 

(6)    

In subsection (1) omit “in pursuance of paragraph 6 of Schedule 6 to the

 

Scotland Act 1998 (devolution issues)”.

 

(7)    

For subsection (2) substitute—

 

“(2)    

Where the Advocate General for Scotland was a party in pursuance

 

of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution

 

issues), the Advocate General may refer to the High Court for their

 

opinion any devolution issue which has arisen in the proceedings.

 

(2A)    

Where the Advocate General for Scotland was a party in pursuance

 

of section 288ZA, the Advocate General may refer to the High Court

 

for their opinion any compatibility issue (within the meaning of

 

that section) which has arisen in the proceedings.

 

(2B)    

If a reference is made under subsection (2) or (2A) the Clerk of

 

Justiciary shall send to the person acquitted or convicted and to any

 

solicitor who acted for that person at the trial a copy of the reference

 

and intimation of the date fixed by the Court for a hearing.”

 

(8)    

In subsection (6) after “(2)” insert “or (2A)”.”

20

Insert the following new Clause—

 

“References of compatibility issues to the High Court or Supreme Court

 

In the Criminal Procedure (Scotland) Act 1995, after section 288ZA

 

(inserted by section (Convention rights and EU law: role of Advocate General in

 

relation to criminal proceedings)) insert—

 

“288ZB 

  References of compatibility issues to the High Court or Supreme

 

Court

 

(1)    

Where a compatibility issue has arisen in criminal proceedings

 

before a court, other than a court consisting of two or more judges

 

of the High Court, the court may, instead of determining it, refer the

 

issue to the High Court.

 

(2)    

The Lord Advocate or the Advocate General for Scotland, if a party

 

to criminal proceedings before a court, other than a court consisting

 

of two or more judges of the High Court, may require the court to

 

refer to the High Court any compatibility issue which has arisen in

 

the proceedings.

 

(3)    

The High Court may, instead of determining a compatibility issue

 

referred to it under subsection (2), refer it to the Supreme Court.


 
 

6

 
 

(4)    

Where a compatibility issue has arisen in criminal proceedings

 

before a court consisting of two or more judges of the High Court,

 

otherwise than on a reference, the court may, instead of

 

determining it, refer it to the Supreme Court.

 

(5)    

The Lord Advocate or the Advocate General for Scotland, if a party

 

to criminal proceedings before a court consisting of two or more

 

judges of the High Court, may require the court to refer to the

 

Supreme Court any compatibility issue which has arisen in the

 

proceedings otherwise than on a reference.

 

(6)    

On a reference to the Supreme Court under this section—

 

(a)    

the powers of the Supreme Court are exercisable only for the

 

purpose of determining the compatibility issue;

 

(b)    

for that purpose the Court may make any change in the

 

formulation of that issue that it thinks necessary in the

 

interests of justice.

 

(7)    

When it has determined a compatibility issue on a reference under

 

this section, the Supreme Court must remit the proceedings to the

 

High Court.

 

(8)    

An issue referred to the High Court or the Supreme Court under

 

this section is referred to it for determination.

 

(9)    

In this section “compatibility issue” has the meaning given by

 

section 288ZA.””

21

Insert the following new Clause—

 

“Convention rights and EU law: criminal appeals to the Supreme Court

 

(1)    

The 1998 Act is amended as follows.

 

(2)    

In section 57(3) (EU law and Convention rights: excepted acts of the Lord

 

Advocate) omit the words after paragraph (b).

 

(3)    

In section 102 (powers of courts or tribunals to vary retrospective

 

decisions)—

 

(a)    

in subsection (4)(b) at the end insert “or to a compatibility issue,”;

 

(b)    

after subsection (5) insert—

 

“(5A)    

Where the decision mentioned in subsection (1) is a decision

 

of the Supreme Court on a compatibility issue, the power to

 

make an order under this section is exercisable by the High

 

Court of Justiciary instead of the Supreme Court.”;

 

(c)    

in subsection (7) before the definition of “intimation” insert—

 

““compatibility issue” has the meaning given by

 

section 288ZA of the Criminal Procedure (Scotland)

 

Act 1995,”.

 

(4)    

In paragraph 1 of Schedule 6 (devolution issues), after sub-paragraph (f)

 

insert—

 

            

“But a question arising in criminal proceedings in Scotland that

 

would, apart from this paragraph, be a devolution issue is not a

 

devolution issue if (however formulated) it relates to the

 

compatibility with any of the Convention rights or with EU law

 

of—


 
 

7

 
 

(a)    

an Act of the Scottish Parliament or any provision of an

 

Act of the Scottish Parliament,

 

(b)    

a function,

 

(c)    

the purported or proposed exercise of a function,

 

(d)    

a failure to act.”

 

(5)    

The Criminal Procedure (Scotland) Act 1995 is amended as follows.

 

(6)    

After section 288A insert—

 

“288AA 

 Appeals to the Supreme Court: compatibility issues

 

(1)    

For the purpose of determining any compatibility issue an appeal

 

lies to the Supreme Court against a determination in criminal

 

proceedings by a court of two or more judges of the High Court.

 

(2)    

On an appeal under this section—

 

(a)    

the powers of the Supreme Court are exercisable only for the

 

purpose of determining the compatibility issue;

 

(b)    

for that purpose the Court may make any change in the

 

formulation of that issue that it thinks necessary in the

 

interests of justice.

 

(3)    

When it has determined the compatibility issue the Supreme Court

 

must remit the proceedings to the High Court.

 

(4)    

In this section “compatibility issue” has the same meaning as in

 

section 288ZA.

 

(5)    

An appeal under this section against a determination lies only with

 

the permission of the High Court or, failing that permission, with

 

the permission of the Supreme Court.

 

(6)    

Subsection (5) does not apply if it is an appeal by the Lord Advocate

 

or the Advocate General for Scotland against a determination by

 

the High Court of a compatibility issue referred to it under section

 

288ZB(2).

 

(7)    

An application to the High Court for permission under subsection

 

(5) must be made—

 

(a)    

within 28 days of the date of the determination against

 

which the appeal lies, or

 

(b)    

within such longer period as the High Court considers

 

equitable having regard to all the circumstances.

 

(8)    

An application to the Supreme Court for permission under

 

subsection (5) must be made—

 

(a)    

within 28 days of the date on which the High Court refused

 

permission under that subsection, or

 

(b)    

within such longer period as the Supreme Court considers

 

equitable having regard to all the circumstances.”

 

(7)    

Section 288B (appeals to the Supreme Court) is amended as follows.

 

(8)    

For the heading substitute “Appeals to the Supreme Court: general”.

 

(9)    

In subsection (1)—

 

(a)    

after “under” insert “section 288AA of this Act or”;

 

(b)    

omit “of a devolution issue”.


 
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