Scotland Bill

AMENDMENTS
TO BE MOVED
IN COMMITTEE

Clause 3

LORD WALLACE OF TANKERNESS

 

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

LORD WALLACE OF TANKERNESS

 

Page 6, line 13, leave out “Presiding Officer shall publish notice of the reference” and insert “person who made the reference shall publish notice of it”

 

Page 6, line 16, leave out “the Presiding Officer” and insert “that person”

 

Page 6, line 36, at end insert—

“(d) provide that an order under subsection (6) may be laid before the Scottish Parliament less than 40 days before it comes into force, despite anything in section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10), as modified by subsection (11).

(9) The Scottish Ministers may by order make such provision as they consider necessary or expedient (including provision amending the Act) in consequence of any delay by virtue of subsection (2) in the coming into force of any provision of the Act.

(10) If the Court decides that any provision of the Act is outside the legislative competence of the Parliament, the Scottish Ministers may by order make such provision as they consider necessary in consequence of that decision in order to give full effect to any provisions of the Act which are within that competence.

(11) In its application to an order under subsection (6), section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (the negative procedure) has effect with the following modifications—

(a) in subsections (2) and (8), for “28 days” substitute “40 days”;

(b) in subsection (4), omit “so far as the instrument is not in force on the date of the resolution” and paragraph (b);

(c) omit subsection (7)(a).””

 

Page 6, line 42, at end insert—

“( ) In section 113 (subordinate legislation: scope of powers), after subsection (1A) (inserted by section 3) insert—

“(1B) Subsections (2) to (6) and (11) apply also to the power of the Scottish Ministers to make an order under section 33A(6), (9) or (10).””

 

Page 7, line 2, after ““Section 33A(6)” insert “, (9) or (10)”

 

Page 7, line 2, at end insert—

“( ) In paragraph 3 of that Schedule (special cases)—

(a) in sub-paragraph (1)(a), after “type F, G, H, I” insert “, J”;

(b) after sub-paragraph (2)(d) insert—

“(da) instead of the type J procedure, the type L procedure shall apply,”.”

Clause 10

LORD WALLACE OF TANKERNESS

 

Lord Wallace of Tankerness gives notice of his intention to oppose the Question that Clause 10 stand part of the Bill.

Before Clause 11

LORD WALLACE OF TANKERNESS

 

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 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 13

LORD WALLACE OF TANKERNESS

 

Page 9, line 7, at end insert—

“The reference to any profession regulated by the Regulation of Care (Scotland) Act 2001 includes—

(a) any profession regulated by that Act by virtue of any subordinate legislation (whenever made) which is or could be made under the Act, and

(b) any profession regulated by any Act of the Scottish Parliament so far as it re-enacts that Act (including any profession regulated by virtue of subordinate legislation under any such Act);

and the references to that Act are to that Act as it has effect on the date on which this paragraph comes into force.””

Clause 17

LORD WALLACE OF TANKERNESS

 

Lord Wallace of Tankerness gives notice of his intention to oppose the Question that Clause 17 stand part of the Bill.

After Clause 17

LORD MCCLUSKEY

 

Insert the following new Clause—

“Convention rights and EU law: appeal to Supreme Court

(1) The 1998 Act is amended as follows.

(2) In section 57(3) (Convention rights and EU law: excepted acts of Lord Advocate), omit the words after paragraph (b).

(3) After paragraph 1 of Schedule 6 (devolution issues), insert—

“(1A) 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—

(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament,

(b) any function,

(c) the purported or proposed exercise of a function,

(d) a failure to act.”

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

(5) In each of sections 112(6), 121(5)(a), 121A(5), 122(4) and (5) and 177(8), after “under” insert “section 288ZA of this Act or”.

(6) In section 124(2)—

(a) after “Part XA” insert “and sections 288ZA and 288ZB”;

(b) after “appeal under” insert “section 288ZA of this Act or”;

(c) after “that Schedule” insert “or a reference under or in pursuance of section 288ZB of this Act”.

(7) For the italic cross-heading before section 288A substitute—

“Convention rights and EU law compatibility questions and devolution issues”.

(8) Before section 288A insert—

“288ZA Compatibility questions: appeal to Supreme Court

(1) For the purposes of this section and sections 288ZB and 288ZC the following are compatibility questions—

(a) a question whether a public authority within the meaning of section 6 of the Human Rights Act 1998 has acted (or proposes to act) in a way which is made unlawful by section 6(1) of that Act,

(b) a question whether an act or failure to act of a public authority within the meaning of section 6 of that Act is incompatible with EU law.

(2) For the purposes of determining a compatibility question raised by the accused in criminal proceedings, an appeal lies to the Supreme Court against a determination of the question by a court of two or more judges of the High Court.

(3) An appeal under this section lies from such a court only—

(a) after the final determination of the proceedings, except in the case of a determination on a reference under subsection (1) of section 288ZB or in pursuance of subsection (2) of that section,

(b) if the court certifies that the compatibility question raises a point of general public importance, and

(c) with the permission of that court or, failing such permission, with the permission of the Supreme Court.

(4) The High Court must give reasons for its decision to grant or withhold a certificate under subsection (3)(b), but that decision is final.

(5) Permission under subsection (3)(c) may be given only if it appears to the court in question that the point is one that ought to be considered by the Supreme Court.

(6) An application for permission to appeal under this section—

(a) if made to the High Court, must be made within 28 days of the date of the final determination of the proceedings or, as the case may be, the determination on the reference under subsection (1) of section 288ZB or in pursuance of subsection (2) of that section,

(b) if made to the Supreme Court, must be made within 28 days of the date on which the High Court refused permission under subsection (3)(c).

(7) In this section “EU law” has the meaning given by section 126(9) of the Scotland Act 1998.

288ZB Compatibility questions: references to High Court and Supreme Court

(1) A court, other than any court of two or more judges of the High Court, may refer any compatibility question that arises in criminal proceedings before it to the High Court for determination.

(2) The Lord Advocate or the Advocate General for Scotland may require any court other than a court of two or more judges of the High Court to refer any compatibility question that arises in criminal proceedings before it to the High Court for determination.

(3) Where the High Court considers that determination of a compatibility question on a reference under subsection (1) or in pursuance of subsection (2) is necessary to enable the proceedings before the court making the reference to be finally determined, the High Court must—

(a) determine the question, or

(b) if it considers that the question raises a point of general public importance which ought to be considered by the Supreme Court, refer the question to the Supreme Court for detemination.

(4) Where the High Court does not consider that determination of the compatibility question is necessary for that purpose, the High Court may (but need not) determine the question.

(5) Subsection (6) applies where the Lord Advocate or the Advocate General for Scotland considers that the determination of a compatibility question by a court of two or more judges of the High Court raises a point of general public importance which ought to be considered by the Supreme Court.

(6) The Lord Advocate or the Advocate General for Scotland may require the High Court to refer the question to the Supreme Court for determination.

288ZC Compatibility questions: powers of Supreme Court

(1) This section applies in relation to an appeal to the Supreme Court under section 288ZA and a reference to that Court in pursuance of section 288ZB(3)(b) or (6).

(2) The Supreme Court’s power under section 40(5) of the Constitutional Reform Act 2005 (power of Supreme Court to determine questions in statutory appeals) is to be read as a power to determine—

(a) the compatibility question set out in the certificate under section 288ZA(3)(b) or the reference in pursuance of section 288ZB(3)(b) or (6), or

(b) such reformulation of the question as the Supreme Court considers necessary to allow it to deal satisfactorily with the point of general public importance set out in the certificate or reference.

(3) Despite section 45 of that Act and any rules made under that section, the Supreme Court’s powers consist only of such of the powers of the High Court as are necessary to enable it to determine the compatibility question and remit the proceedings to the High Court.”

(9) In section 288B(1)—

(a) after “under” insert “section 288ZA of this Act or”;

(b) omit “of a devolution issue”.

Before Clause 38

LORD WALLACE OF TANKERNESS

 

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

(a) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or

(b) in a way which is incompatible with EU law.

(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)”.”

 

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

“But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act 1995 (right of Advocate General to take part in proceedings).”

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

(5) 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 court that made the determination or, failing that permission, with the permission of the Supreme Court.

(6) An application to the High Court for permission under subsection (5) must be made—

(a) within 28 days of the date of the final determination of the proceedings or, as the case may be, the date of the determination on the reference under section 288A(2A), or

(b) within such longer period as the High Court considers equitable having regard to all the circumstances.

(7) 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.”

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

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

(8) In subsection (1)—

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

(b) omit “of a devolution issue”.

(9) In sections 112(6), 121(5)(a), 121A(5), 122(4) and (5) and 177(8), after “under” insert “section 288AA of this Act or”.

(10) In section 124(2)—

(a) after “Part XA” insert “and section 288AA”;

(b) after “appeal under” insert “section 288AA of this Act or”.”

Prepared 20th January 2012