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[The page and line references are to HL Bill 79, the bill as first printed for the Lords.] |
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1 | Page 3, line 25, leave out from “powers)” to end of line 34 and insert “after |
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| “(1A) | Subsections (2) to (11), except subsection (9), apply also to the |
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| power of the Scottish Ministers to make an order under section |
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2 | |
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3 | |
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4 | Insert the following new Clause— |
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| | “Continued effect of provisions ceasing to be within legislative competence |
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| (1) | In section 30 of the 1998 Act (legislative competence: supplementary) after |
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| “(5) | Subsection (6) applies where any alteration is made— |
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| (a) | to the matters which are reserved matters, or |
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| | (whether by virtue of the making, revocation or expiry of an Order |
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| in Council under this section or otherwise). |
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| (6) | Where the effect of the alteration is that a provision of an Act of the |
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| Scottish Parliament ceases to be within the legislative competence |
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| of the Parliament, the provision does not for that reason cease to |
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| have effect (unless an enactment provides otherwise).” |
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| (2) | After section 29(4) of that Act (legislative competence) insert— |
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| “(5) | Subsection (1) is subject to section 30(6).” |
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| (3) | In section 92 of that Act (Queen’s Printer for Scotland), after subsection |
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| (4A) (inserted by section 16) insert— |
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| “(4B) | If, following an alteration such as is mentioned in section 30(5)— |
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| (a) | subordinate legislation is made, confirmed or approved |
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| under a provision which continues to have effect by virtue |
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| (b) | the making, confirmation or approval would be within |
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| devolved competence but for the alteration, |
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| | the subordinate legislation is to be regarded for the purposes of this |
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| section as being made, confirmed or approved within devolved |
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5 | |
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6 | |
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7 | Page 10, line 7, leave out first “the” |
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8 | Page 10, line 7, leave out second “the” |
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9 | |
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10 | Page 15, line 8, leave out “Scottish Crown Estate Commissioner” and insert |
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| “Crown Estate Commissioner with special responsibility for Scotland” |
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11 | Page 15, line 13, leave out “Scottish Crown Estate Commissioner” and insert |
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| “Crown Estate Commissioner with special responsibility for Scotland” |
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12 | Page 18, line 16, after “of” insert “regulations under section 86 or” |
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13 | Page 18, line 18, after “the” insert “regulations or” |
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14 | Page 18, line 25, at end insert— |
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| “( ) | Section 86 (speed limits for particular classes of vehicles) is amended as |
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| ( ) | For “Secretary of State” in each place substitute “national authority”. |
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| ( ) | After subsection (6) insert— |
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| “(7) | The national authority in this section— |
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| (a) | as respects the driving of vehicles on roads in England and |
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| Wales, is the Secretary of State; |
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| (b) | as respects the driving of vehicles on roads in Scotland, is |
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| (8) | Regulations made by the Scottish Ministers under this section are |
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| subject to the affirmative procedure. |
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| (9) | Before making any regulations under this section the Scottish |
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| Ministers must consult with such representative organisations as |
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15 | Page 19, line 8, at end insert— |
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| “( ) | In section 134(4) (provision as to regulations under sections 86 and 140) |
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| after “Regulations made” insert “by the Secretary of State”.” |
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16 | Page 19, line 15, leave out paragraph (b) and insert— |
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| “(b) | omit paragraph (f) (sections 86(2) and 88(1) and (4)).” |
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17 | |
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18 | Insert the following new Clause— |
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| “Reports on the implementation and operation of this Part |
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| (1) | The Secretary of State must— |
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| (a) | make reports on the implementation and operation of this Part (see |
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| (b) | lay a copy of each report before both Houses of Parliament, and |
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| (c) | send a copy of each report to the Scottish Ministers, who must lay a |
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| copy of it before the Scottish Parliament. |
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| (2) | The Scottish Ministers must— |
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| (a) | make reports on the implementation and operation of this Part (see |
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| (b) | lay a copy of each report before the Scottish Parliament, and |
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| (c) | send a copy of each report to the Secretary of State, who must lay a |
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| copy of it before both Houses of Parliament. |
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| (3) | A report must be made under each of subsections (1) and (2)— |
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| (a) | before the end of the period of one year beginning with the day on |
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| which this Act is passed, and |
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| (b) | thereafter, before the end of each subsequent period of one year |
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| until the final reports are made under subsection (4). |
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| (4) | Final reports must be made on or as soon as practicable after— |
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| (b) | if later, the first anniversary of the day on which the last of the |
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| provisions of this Part comes into force. |
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| (5) | A report on the implementation and operation of this Part must include— |
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| (a) | a statement of the steps which have been taken, whether by the |
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| maker of the report or by others, since the making of the previous |
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| report (or, in the case of the first report, since the passing of this Act) |
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| towards the commencement of the provisions of this Part, |
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| (b) | a statement of the steps which the maker of the report proposes |
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| should be taken, whether by the maker of the report or by others, |
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| towards the commencement of the provisions of this Part, |
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| (c) | an assessment of the operation of the provisions of this Part which |
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| (d) | an assessment of the operation of any other powers to devolve taxes |
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| to the Scottish Parliament or to change the powers of the Scottish |
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| Ministers to borrow money, and of any other changes affecting the |
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| provisions inserted or amended by this Part, |
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| (e) | the effect of this Part on the amount of any payments made by the |
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| Secretary of State under section 64(2) of the 1998 Act (payments into |
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| the Scottish Consolidated Fund), and |
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| (f) | any other matters concerning the sources of revenue for the Scottish |
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| Administration (within the meaning of section 126(6) of the 1998 |
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| Act) which the maker of the report considers should be brought to |
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| the attention of the Parliament of the United Kingdom or the |
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19 | Insert the following new Clause— |
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| “Convention rights and EU law: role of Advocate General in relation to criminal |
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| (1) | The Criminal Procedure (Scotland) Act 1995 is amended as follows. |
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| (2) | For the italic heading before section 288A substitute “Convention rights |
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| and EU law compatibility issues, and devolution issues”. |
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| (3) | After that heading insert— |
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| “288ZA | Right of Advocate General to take part in proceedings |
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| (1) | The Advocate General for Scotland may take part as a party in |
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| criminal proceedings so far as they relate to a compatibility issue. |
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| (2) | In this section “compatibility issue” means a question, arising in |
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| criminal proceedings, as to— |
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| (a) | whether a public authority has acted (or proposes to act)— |
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| (i) | in a way which is made unlawful by section 6(1) of |
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| the Human Rights Act 1998, or |
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| (ii) | in a way which is incompatible with EU law, or |
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| (b) | whether an Act of the Scottish Parliament or any provision |
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| of an Act of the Scottish Parliament is incompatible with any |
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| of the Convention rights or with EU law. |
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| (a) | “public authority” has the same meaning as in section 6 of |
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| the Human Rights Act 1998; |
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| (b) | references to acting include failing to act; |
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| (c) | “EU law” has the meaning given by section 126(9) of the |
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| (4) | Section 288A (rights of appeal for Advocate General: devolution issues) is |
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| (5) | In the heading, before “devolution issues” insert “compatibility issues |
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| (6) | In subsection (1) omit “in pursuance of paragraph 6 of Schedule 6 to the |
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| Scotland Act 1998 (devolution issues)”. |
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| (7) | For subsection (2) substitute— |
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| “(2) | Where the Advocate General for Scotland was a party in pursuance |
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| of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution |
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| issues), the Advocate General may refer to the High Court for their |
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| opinion any devolution issue which has arisen in the proceedings. |
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| (2A) | Where the Advocate General for Scotland was a party in pursuance |
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| of section 288ZA, the Advocate General may refer to the High Court |
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| for their opinion any compatibility issue (within the meaning of |
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| that section) which has arisen in the proceedings. |
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| (2B) | If a reference is made under subsection (2) or (2A) the Clerk of |
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| Justiciary shall send to the person acquitted or convicted and to any |
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| solicitor who acted for that person at the trial a copy of the reference |
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| and intimation of the date fixed by the Court for a hearing.” |
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| (8) | In subsection (6) after “(2)” insert “or (2A)”.” |
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20 | Insert the following new Clause— |
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| “References of compatibility issues to the High Court or Supreme Court |
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| In the Criminal Procedure (Scotland) Act 1995, after section 288ZA |
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| (inserted by section (Convention rights and EU law: role of Advocate General in |
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| relation to criminal proceedings)) insert— |
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| “288ZB | References of compatibility issues to the High Court or Supreme |
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| (1) | Where a compatibility issue has arisen in criminal proceedings |
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| before a court, other than a court consisting of two or more judges |
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| of the High Court, the court may, instead of determining it, refer the |
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| (2) | The Lord Advocate or the Advocate General for Scotland, if a party |
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| to criminal proceedings before a court, other than a court consisting |
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| of two or more judges of the High Court, may require the court to |
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| refer to the High Court any compatibility issue which has arisen in |
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| (3) | The High Court may, instead of determining a compatibility issue |
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| referred to it under subsection (2), refer it to the Supreme Court. |
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| (4) | Where a compatibility issue has arisen in criminal proceedings |
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| before a court consisting of two or more judges of the High Court, |
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| otherwise than on a reference, the court may, instead of |
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| determining it, refer it to the Supreme Court. |
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| (5) | The Lord Advocate or the Advocate General for Scotland, if a party |
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| to criminal proceedings before a court consisting of two or more |
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| judges of the High Court, may require the court to refer to the |
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| Supreme Court any compatibility issue which has arisen in the |
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| proceedings otherwise than on a reference. |
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| (6) | On a reference to the Supreme Court under this section— |
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| (a) | the powers of the Supreme Court are exercisable only for the |
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| purpose of determining the compatibility issue; |
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| (b) | for that purpose the Court may make any change in the |
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| formulation of that issue that it thinks necessary in the |
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| (7) | When it has determined a compatibility issue on a reference under |
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| this section, the Supreme Court must remit the proceedings to the |
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| (8) | An issue referred to the High Court or the Supreme Court under |
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| this section is referred to it for determination. |
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| (9) | In this section “compatibility issue” has the meaning given by |
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21 | Insert the following new Clause— |
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| “Convention rights and EU law: criminal appeals to the Supreme Court |
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| (1) | The 1998 Act is amended as follows. |
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| (2) | In section 57(3) (EU law and Convention rights: excepted acts of the Lord |
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| Advocate) omit the words after paragraph (b). |
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| (3) | In section 102 (powers of courts or tribunals to vary retrospective |
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| (a) | in subsection (4)(b) at the end insert “or to a compatibility issue,”; |
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| (b) | after subsection (5) insert— |
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| “(5A) | Where the decision mentioned in subsection (1) is a decision |
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| of the Supreme Court on a compatibility issue, the power to |
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| make an order under this section is exercisable by the High |
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| Court of Justiciary instead of the Supreme Court.”; |
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| (c) | in subsection (7) before the definition of “intimation” insert— |
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| ““compatibility issue” has the meaning given by |
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| section 288ZA of the Criminal Procedure (Scotland) |
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| (4) | In paragraph 1 of Schedule 6 (devolution issues), after sub-paragraph (f) |
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| | “But a question arising in criminal proceedings in Scotland that |
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| would, apart from this paragraph, be a devolution issue is not a |
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| devolution issue if (however formulated) it relates to the |
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| compatibility with any of the Convention rights or with EU law |
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| (a) | an Act of the Scottish Parliament or any provision of an |
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| Act of the Scottish Parliament, |
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| (c) | the purported or proposed exercise of a function, |
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| (5) | The Criminal Procedure (Scotland) Act 1995 is amended as follows. |
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| (6) | After section 288A insert— |
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| “288AA | Appeals to the Supreme Court: compatibility issues |
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| (1) | For the purpose of determining any compatibility issue an appeal |
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| lies to the Supreme Court against a determination in criminal |
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| proceedings by a court of two or more judges of the High Court. |
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| (2) | On an appeal under this section— |
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| (a) | the powers of the Supreme Court are exercisable only for the |
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| purpose of determining the compatibility issue; |
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| (b) | for that purpose the Court may make any change in the |
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| formulation of that issue that it thinks necessary in the |
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| (3) | When it has determined the compatibility issue the Supreme Court |
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| must remit the proceedings to the High Court. |
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| (4) | In this section “compatibility issue” has the same meaning as in |
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| (5) | An appeal under this section against a determination lies only with |
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| the permission of the High Court or, failing that permission, with |
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| the permission of the Supreme Court. |
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| (6) | Subsection (5) does not apply if it is an appeal by the Lord Advocate |
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| or the Advocate General for Scotland against a determination by |
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| the High Court of a compatibility issue referred to it under section |
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| (7) | An application to the High Court for permission under subsection |
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| (a) | within 28 days of the date of the determination against |
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| which the appeal lies, or |
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| (b) | within such longer period as the High Court considers |
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| equitable having regard to all the circumstances. |
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| (8) | An application to the Supreme Court for permission under |
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| subsection (5) must be made— |
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| (a) | within 28 days of the date on which the High Court refused |
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| permission under that subsection, or |
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| (b) | within such longer period as the Supreme Court considers |
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| equitable having regard to all the circumstances.” |
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| (7) | Section 288B (appeals to the Supreme Court) is amended as follows. |
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| (8) | For the heading substitute “Appeals to the Supreme Court: general”. |
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| (a) | after “under” insert “section 288AA of this Act or”; |
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| (b) | omit “of a devolution issue”. |
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