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Lord Mackay of Drumadoon moved Amendment No. 37:

Page 4, line 9, after ("any") insert ("natural or legal").

The noble and learned Lord said: This is a relatively minor amendment compared to those we discussed earlier today. I hope that it will be viewed by the Government as an amendment which does not offer any form of violence to the scheme of the Bill as the noble and learned Lord the Lord Chancellor has carefully and painstakingly explained it to us.

While I fully accept what has been said about the problems associated with having an exhaustive list, it nevertheless may be valuable to set it clear on the face of the Bill that in Clause 6(3)(c) the person or persons to whom reference is made can be either natural or legal persons. When one looks at the convention rights set out in Schedule 1 to the Bill, one sees that in Article 1 of the First Protocol, on page 17 of the Bill, there is reference to "every natural or legal person", making it clear that both categories are protected when it comes to the peaceful enjoyment of their possessions. That contrasts with the provisions of the convention itself which, when dealing with, for example, the right to liberty and security in Article 5, restricts itself to the use of the word "person". I therefore hope that the Government will be persuaded of the merit of looking at this matter when they reconsider the terms of Clause 6. I beg to move.

Lord William of Mostyn: I am most grateful for that explanation. We have looked at the matter in the context of the schedule and the terms of the convention article to which the noble and learned Lord, Lord Mackay of Drumadoon, referred. We believe that the present draft of

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the Bill achieves what the noble and learned Lord wishes to achieve since Clause 6(3)(c) refers to "any person". Unlike the situation when one looks at the drafting of Article 1, the term is well known as a term of art in our law. It is defined in the Interpretation Act 1978 and is relied upon throughout the statute book as including any person or body of persons corporate or unincorporate. I suggest that that is clearly wide enough to cover the natural or legal person to which the amendment refers. I hope that that short explanation is of assistance to the noble and learned Lord. We believe that the Bill fully accommodates what he wishes to achieve.

Lord Mackay of Drumadoon: I am grateful to the noble Lord for his explanation, which I fully understand and accept. I hope that lay people who will increasingly be looking at the Bill will do likewise. In the light of the explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 38:

Page 4, line 10, at end insert ("and
(d) any person concerned with the provision to the public or a section of the public (whether for payment or otherwise) of any goods, facilities or services").

The noble and learned Lord said: This amendment was discussed in the grouping with Amendment No. 36. I should like to say a word about what the noble and learned Lord said about it.

I paid earlier a well merited and genuine tribute to the intellectual power which has gone into the Bill and which has promoted and secured its cohesion. But the noble and learned Lord, like other artists before him, has, I am afraid, fallen in love with his own creation. It is the Pygmalion syndrome. When we who are supporters of the Bill suggest that perhaps so elaborate a hairstyle is not required in every circumstance and that, for example, when dealing with preceding legislation, a plainer style, which is well known to part of our law, might be acceptable, the noble and learned Lord merely says, "That does not fit in with our scheme, and that is an end of it." I am afraid that I cannot accept that. We shall have to return to the clause at a later stage. It was criticised from all parts of the House by supporters of the Bill--by the noble Lord, Lord Borrie, the noble Lord, Lord Windlesham, and my noble and learned friend Lord Donaldson of Lymington.

The noble and learned Lord said that my amendment would extend to people like window cleaners, the restaurant or the church on the corner, and so on. That is arguable, but by no means certain. But if those people fall within the definition of the Race Relations Act, why should they not be encompassed by the Human Rights Bill?

However, this is not the time to argue further. I am afraid that my noble and learned friend has once again clothed himself in flames and decided to send this amendment to the nether regions.

[Amendment No. 38 not moved.]

[Amendments Nos. 39 and 40 not moved.]

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Lord Mackay of Drumadoon moved Amendment No. 41:

Page 4, line 12, at end insert ("or the Lord Advocate or Attorney General exercising their roles as independent public prosecutors").

The noble and learned Lord said: This amendment raises the important issue of the intended effect of the Bill on the decisions taken by the Attorney-General and those who work under his supervision and by the Lord Advocate in their roles as independent public prosecutors. I accept at the outset that the role of the Attorney-General in England is not identical to that of the Lord Advocate in Scotland. However, I felt it appropriate to raise the roles of both Law Officers, though my specific concern, for reasons upon which I shall elaborate, is with the role of the Lord Advocate, his Crown counsel and procurators fiscal in Scotland.

It is clear from the discussion that has taken place in the Committee this afternoon that both the Attorney-General and the Lord Advocate fall within the definition of "public authority" as set out in Clause 6(3) of the Bill. I also accept, as I am sure the Committee accepts, that at all times those acting as independent public prosecutors will wish to follow, in the course of taking the decisions with which they are charged, all of the principles to be set out in the convention and the protocols to which the United Kingdom is bound and seek to respect the convention rights as they are defined in the Bill.

The question which arises and on which I seek guidance from the Minister is this. Is it intended that the decisions taken by or on behalf of the Attorney-General and the Lord Advocate as to whether to prosecute in a specific case, and, if there is to be a prosecution, on which charges, should be open to review by the courts on the basis that a specific decision is incompatible with one or more convention rights? In other words, the issue I seek to address is the issue of jurisdiction. Is it intended that the courts, whether it be the civil or the criminal courts, should have jurisdiction to entertain such an application, whether at the instance of the person who has been prosecuted or at the instance of a victim of a person who may have been arrested by the police but against whom no criminal proceedings are to take place?

It is not difficult to imagine an argument being evolved that a decision taken as to whether to prosecute has in some way breached, or been taken in a way which is incompatible with, the convention rights as defined in the Bill. As the noble Lord, Lord Williams of Mostyn, said on the first day of Committee, some arguments advanced in legal proceedings are more meritorious than others. It is not difficult to imagine the argument being conceived. What I wish to address is not the merits of such an application but the issue of whether the courts should have jurisdiction to entertain such an application.

I understand, though I shall be guided by English lawyers in this matter, that in limited circumstances the High Court in England will entertain judicial review proceedings against the decision of the independent prosecutor. That principle has been established certainly in relation to cases involving the prosecution of juveniles where it is possible for the person bringing

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the proceedings to demonstrate that the DPP decision to prosecute has been contrary to settled prosecution policy.

In Scotland the position is different. I am unaware of any case in which either the High Court of Justiciary or the Court of Session has entertained proceedings which have sought judicially to review the decision of the Lord Advocate or a procurator fiscal either to initiate criminal proceedings or to refrain from doing so. The principle which applies is well established and was famously described by the then Lord Justice General, Lord Justice General Clyde, in the case of M'Bain v. Crichton in 1961. He said this:

    "In this country [Scotland] he [the Lord Advocate] is the recognised prosecutor in the public interest. It is for him, in the exercise of his responsible office, to decide whether he will prosecute in the public interest and at the public expense, and under our constitutional practice this decision is a matter for him, and for him alone. No one can compel him to give his reasons, nor order him to concur in a private prosecution. The basic principle of our system of criminal administration in Scotland is to submit the question of whether there is to be a public prosecution to the impartial and skilled investigation of the Lord Advocate and his department, and the decision whether or not to prosecute is exclusively within his discretion".

The Lord Justice General went on to say:

    "It is utterly inconsistent with such a system that the Courts should examine, as it was suggested it would be proper or competent for us to do, the reasons which have affected the Lord Advocate in deciding how to exercise his discretion, and it would be still more absurd for this Court to proceed to review their soundness".

That principle was recognised not long ago during the holding of the Cullen inquiry into the Dunblane tragedy, where it was felt appropriate that the procurators fiscal who had been involved in dealing with police reports relating to Thomas Hamilton should give evidence before Lord Cullen. They did so. But Lord Cullen respected the principle that it would be inappropriate to review the soundness of the decisions which the individual procurators fiscal had reached.

It is important, with any form of constitutional Bill, that this Chamber examines with great care what may be the unintended consequences of legislation being brought forward with a wide measure of support, as it is suggested this Bill has. What I seek to have clarified, particularly in relation to Scotland but also in relation to England, is the issue of jurisdiction; namely, whether the courts could confidently review those decisions I described as against the convention rights set out in the schedule to the Bill. I beg to move.

6.45 p.m.

Lord Hope of Craighead: I should like to add a few words to what the noble and learned Lord said in order to focus on what I see as a relatively narrow but important point raised by his amendment. The point is rather more narrow than the terms of his amendment suggest.

There is a considerable field of both investigation and prosecution practice which is currently subject to review under the common law by the law of Scotland, on which I am best qualified to speak. To take one recent and indeed welcome example, in a case called McLeod, which is well known to the noble and learned Lord the

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Lord Advocate, the High Court of Justiciary in Scotland referred to a larger court for further examination the question of whether the prosecutor was obliged by Article 6(1) of the convention to disclose all material evidence for or against the accused. It took the view that these decisions were of great importance and required proper consideration of the relevant jurisprudence of the European Court of Human Rights.

I mention that because I would not like it to be thought that the court--I speak against the background of having served as chairman of the court on these issues for a number of years--was not aware of the importance of these issues and anxious to develop the jurisprudence under the common law. The point to which the noble and learned Lord has referred, however, is, as I have said, a very narrow one as to whether it is right for the court to tell the Lord Advocate whether he should prosecute or not prosecute in a particular case, and, if so, on what charges he should or should not prosecute.

There is, to add further background to the point, certainly jurisdiction to the effect that if the Lord Advocate decides to prosecute, he may be told that his prosecution is bad because it is oppressive; he may be told that it is too late; he may be told that the charges which he brings are incompetent or the wording is irrelevant. It is the narrow point of decision taking as to whether or not to prosecute that is at issue. The reason, I suspect, why the court has always in the past held back from giving directions on these matters is that it has always in the past taken the view that these questions raise difficult issues of policy which are best decided by the Lord Advocate and on which the court is really not well placed to express a view.

The issue for the noble and learned Lord the Lord Advocate, if he is to reply, is whether the law should be changed on this matter. If it is to be changed, it raises one other important point on which perhaps I should dwell at least for a moment. If a prosecution has been brought--if a decision has been taken--and the matter is then in the criminal field, there is plenty of jurisprudence in Scotland which identifies the court to which the matter can be brought; that is, the High Court of Justiciary. If there are no proceedings and a decision is being asked for as to whether the Lord Advocate ought to prosecute, there seems to me to be an open question as to whether that is a matter to be brought by way of judicial review in the Court of Session.

I do not need to emphasise the importance of the choice from the point of view of Scottish practice, because there is no appeal to the House of Lords from decisions of the High Court of Justiciary whereas there is an appeal from decisions of the Court of Session in matters of judicial review. I confess that it is not clear to me from the present wording of the Bill whether, if these matters are to be subject to review, it is clearly decided that they should be taken under review only in the High Court of Justiciary, which I would venture to suggest was the proper court for it. If that is to be the decision, it may well be that some indication in primary legislation should be given.

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I make these observations really more to emphasise the importance of the amendment which the noble and learned Lord has suggested rather than to develop his theme in any further detail.

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