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Lord Kingsland: Perhaps I may say to the noble and learned Lord the Lord Chancellor that on this occasion he has been uncharacteristically unfair, because I coupled my remark about the probing amendment with the observation that Amendment No. 66 provided a constructive solution to the problem he posed, preserving the right of the High Court and the Court of Appeal to make a declaration of incompatibility but allowing a period to elapse so that any rights of appeal were exhausted before Parliament leapt into action.

It seems to me that if the incompatibility between the European Convention on Human Rights and any domestic statute or common law is a matter of law, then Parliament owes it to the courts to make up its mind finally whether the incompatibility exists. The courts cannot make up their mind finally to decide whether or not the incompatibility exists until the appeal procedures have been exhausted. The problem could become a particular embarrassment if halfway through Parliament's fast-track procedure the courts changed their mind about whether incompatibility existed.

With great respect, I put it to the noble and learned Lord that if he sees my opening statement in the context of Amendment No. 66, he will see that it is--"for once" he might say--a genuine attempt to provide a constructive solution to what I think is quite a serious problem. I invite the noble and learned Lord to have a further public reflection on the matter.

The Lord Chancellor: I undertake to have a further private reflection on that point.

Lord Kingsland: That is good enough for me and in those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Lord Mackay of Drumadoon moved Amendment No. 26:

Page 3, line 11, leave out ("sitting as a court of criminal appeal").

The noble and learned Lord said: As the noble and learned Lord the Lord Chancellor will be aware, this is one of a number of amendments that have been suggested by the Law Society in Scotland and have been circulated, together with appropriate briefings, to a number of noble Lords who are taking an interest in the passage of the Bill.

Amendment No. 26 seeks to explore, in the context of Clause 4(5)(d) the reason why "declarators of incompatibility", as I understand them to be called in

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Scotland, can be made by a High Court judge sitting in his civil jurisdiction as a judge in a Court of Session, but not by the same High Court judge sitting in his criminal capacity as a judge in the High Court of Justiciary. In criminal matters, it is only when a case has reached the Court of Criminal Appeal that the option of a declarator will be open.

One can anticipate that in criminal cases issues will arise as to whether the statutory provision upon which a charge is based is compatible with Convention rights. One can envisage also arising situations when evidence is recovered in terms of a search warrant granted in terms of statutory provisions alleged to be incompatible with Convention rights. If those issues are to be raised, it will be the duty of counsel to address the High Court judge on the legal argument. He will undoubtedly form a view as to whether there is that alleged incompatibility with Convention rights.

The purpose of the amendment is to see why the judge is not to be given that option in criminal matters when, if similar issues arise in civil cases, he will have such an option. I beg to move.

The Lord Chancellor: I wonder whether what lies behind the noble and learned Lord's amendment is concern that somehow or other the statutory provision may be operating as some kind of slight on the High Court of Justiciary in Scotland. Not so. The Bill does not call in question the standing of the High Court of Justiciary in Scotland and well understands that it is of equivalent rank to the High Court in England. The intention is not to confer on judges presiding over criminal trials, whatever their rank, the power to grant declarations of incompatibility. In fact, High Court judges in England who sit in crime at, say, the Old Bailey in London or anywhere in the country, sit in the Crown Court albeit that they are High Court Judges; whereas it is well understood that when Scottish judges sit as criminal judges and in the High Court of Justiciary, they do so in a rank which, for the purposes of criminal cases, is equivalent to the rank that they occupy in the Court of Session. That is well understood.

The point is different. Put simply, the policy that the Bill reflects is that judges who preside over criminal trials should not have the power to make declarations of incompatibility. However, judges sitting in the High Court in England, not as judges sitting in the Court of Session in Scotland, in a judicial review matter would be empowered to make declarations or declarators of incompatibility. But the policy that lies behind the existing statutory provision is that we do not believe that trials should be upset, or potentially upset, by declarations of incompatibility that may go to the very foundations of the prosecution.

Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Mackay of Drumadoon moved Amendment No. 27:

Page 3, line 12, at end insert ("or the Court of the Lord Lyon or any Court of the Church of Scotland.").

The noble and learned Lord said: Amendment No. 27 touches on another Scottish peculiarity of this Bill; namely, the possible application of the provisions of the Bill first to the Court of the Lord Lyon and, secondly, to the courts of the Church of Scotland. The noble and learned Lord will be aware that the Lyon Court in Scotland deals with all matters relating to heraldry and makes rulings on genealogy, some of which are accepted by the Committee for Privileges of your Lordships' House in claims regarding Scottish peerage cases. There is a right of appeal from the Lyon Court to the Inner House of the Court of Session but, subject to that right of appeal, matters are left to Lord Lyon and his court. The issue arises as to why that court does not fall to be included in Clause 4(5).

How the provisions of this Bill will affect the courts of the Church of Scotland is a much more fundamental question. A number of questions arise which I know are of interest not only to the Law Society who have promoted this amendment but to the Church itself. Since the amendment was framed I have spoken to the Procurator to the General Assembly of the Church of Scotland. I know that he will be considering the matter very anxiously and will welcome any explanation that can be given as to the effect of these provisions on those courts and their legislative powers. I understand from Clause 21(1) that "primary legislation" which is defined in paragraph (d) as including a "Measure of the Church Assembly" is not intended to refer to the General Assembly of the Church of Scotland.

On that basis I ask the noble and learned Lord: what is the intention of the Government as to the effect of this Bill on the Church? Is it intended that the courts of the Church shall fall within the phrase "A court or tribunal" in Clause 2(2)? Is it intended that the provisions of Clause 3(1) apply to the courts of the Church who, during the course of their work, have to construe and apply primary legislation of this Parliament and any subordinate legislation that may flow from it? Is it intended that the General Assembly of the Church of Scotland as a body that passes church legislation should fall within the definition of "public authority", which is relevant to the provisions of Clause 6? More importantly perhaps, is it intended that the courts of the Church and those who have the duty to refer and present disciplinary cases to those courts should fall within the definition of public authority as set out in Clause 6(3)(c)?

These are important issues in Scotland and important issues for the Church of Scotland. Since the passing of the Church of Scotland Act 1921, it has vigorously defended before the courts in Scotland its right to have sole jurisdiction to determine all questions concerning membership and office in the Church, the constitution and membership of the courts of the Church, the mode of election of its office bearers and the defining of the boundaries of the spheres of labour of its ministers and

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other office spheres. It has resisted any right of any civil authority, including the civil courts in Scotland, to interfere with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction.

These are complex and important matters. It may well be that tonight is not the night to expect the noble and learned Lord to give a full response to them. But they are matters to which I anticipate that I shall wish to return at Report stage. At this time, in the absence of any Scottish lawyer on the Front Bench, an undertaking to respond in writing to the points I have raised to allow me and others to reflect on them before Report stage may make it possible to pass from the amendment without unnecessary delay. I beg to move.

Lord Lester of Herne Hill: We are in deep waters. I have no wish to plumb the depths of them tonight. However, it seems to me that so far as concerns the Lord Lyon King of Arms, it is difficult to think of a situation in which any decision he might make, whether with or without Garter King of Arms--for example, as to whether my noble friend Lord Jenkins of Hillhead is entitled to call himself "of Hillhead" as well as "in the County of Swansea" in his title, to take a working example--could possibly trigger a claim of breach of the European Convention on Human Rights.

So far as concerns Church courts, it seems to me in the first place that it is fairly clear from English public law principles--I imagine that they would apply mutatis mutandis north of the Border--that the courts would not regard the decisions taken by the Chief Rabbi, for example, in an actual case, or the senate, or the bishops of the Catholic Church, any more than they regard visitors of universities in their visitorial jurisdiction as falling within the scope normally of judicial review as bodies that are public authorities exercising public powers. They are careful to draw the line between those kinds of decisions and decisions they habitually review. I should have thought that one would expect a similar approach to be taken to Scots public law--it is a matter of Scots law in the end--especially under the Act of Union and its guarantee of the position of the Church in Scotland and of the court system.

In any event, I find it difficult to imagine a situation in which any of those bodies would be likely to trigger breaches of the convention. I wonder whether any examples have been given by the Law Society of Scotland to show that it is a real issue rather than an abstract, theoretical one. On the face of it, it seems hard to imagine a situation arising in which this would be a problem.

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