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Lord Williams of Mostyn moved Amendment No. 30:

Page 5, line 8, at end insert--
("(9A) The Minister who has power to make rules in relation to a particular tribunal may by order give that tribunal jurisdiction--
(a) to determine such questions arising in connection with the Convention rights, or
(b) to grant in respect of acts (or proposed acts) of public authorities which are (or would be) unlawful as a result of section 6(1) such relief or remedy of a kind that it has power to grant,
as he considers appropriate.
(9B) An order made under subsection (9A) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.").

The noble Lord said: My Lords, in moving Amendment No. 30, perhaps I may deal also with the matters raised in Amendments Nos. 38, 66 and 73. As your Lordships know, the amendments to Clauses 7 and 20 respond to specific concerns expressed by the noble Earl, Lord Russell, in Committee. He referred to appeals in asylum cases heard by the special adjudicator under the Asylum and Immigration Appeals Act 1993. He pointed out that the jurisdiction of the adjudicator was restricted under that Act to considering claims under the 1951 Convention on Refugees and suggested that the adjudicators should be allowed also to consider claims dependent on the European Convention on Human Rights. On that occasion, I indicated our preliminary view that the noble Earl was probably right and I also indicated--I paraphrase, bearing in mind the lateness of

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the hour--that we would see what we could do to attend to his concerns. We concluded that the noble Earl's analysis of the 1993 Act is correct.

A person appearing in difficult circumstances before the special adjudicator would not be able to rely on the convention rights. He would not be left without any remedy under the Human Rights Bill, because he would be able to rely on those rights in separate proceedings under Clause 7(1)(a) of the Bill. The better course, however, would be for him to be able to rely on convention points at the time when the case was before the special adjudicator. I explained in Committee that that was our intention and that we would consider the form of amendment.

The outcome of our deliberation is the amendments currently before your Lordships. The effect of Amendment No. 30 is to enable a Minister to confer jurisdiction on a tribunal to determine convention issues or to grant a remedy where a public authority has acted incompatibly with the convention rights. The jurisdiction is to be conferred by order. It will be in addition to the existing statutory provisions relating to tribunal jurisdiction. In the particular case of concern to the noble Earl, it will enable the Secretary of State to confer jurisdiction on the adjudicator to consider claims relating to convention rights, notwithstanding the restriction in the 1993 Act, and to provide a remedy if a public authority acts in a way which is incompatible with those rights.

The intention would be to use the order-making power to extend the jurisdiction of the special adjudicators who hear asylum appeals so as to allow a person appealing on one of the grounds set out in Section 8 of the 1993 Act to appeal also on the ground that his removal from the United Kingdom would be unlawful under Clause 6(1) of the Human Rights Bill. An appellant who succeeded on that ground would not be granted asylum but would be irremovable from the United Kingdom and eligible for exceptional leave to remain. Therefore, the effect of such an order would be to make the ECHR jurisdiction in asylum appeals consistent with that in non-asylum appeals under Section 19 of the Immigration Act 197l.

The order conferring jurisdiction is to be subject to affirmative resolution under the scheme that we propose. We sought to make general provision of this kind rather than to operate directly on the Act of 1993. That is because we do not think it appropriate for a Bill of general application, such as this one, to remedy problems in a particular piece of legislation. Moreover, we are not certain that the problem identified by the noble Earl is necessarily confined to tribunal hearings in immigration appeals cases. We are not aware at present of similar problems arising from statutory restrictions on the jurisdiction of other tribunals, but if such problems do emerge we would look to a general provision which I hope the noble Earl can welcome because, although consonant with his approach, it goes beyond the ambit of his particular concern. We are looking for a general provision in order to deal with such problems.

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I recognise that that is a short-term solution but, when a suitable opportunity arises, we will seek to amend the relevant primary legislation. On the basis of that explanation, which is as reasonably short as I can conveniently make it, I hope that the House will agree that the government's amendments meet a mischief which was identified. I also hope that the noble Earl will think that this is an appropriate solution--perhaps a little more so than his solution--and on behalf not only of the Government but also of your Lordships' House, I thank the noble Earl for his persistence in identifying that gap. I beg to move.

Earl Russell: My Lords, to be given what one asks for in this House is a luxury; to be given more than one asks for is an exceptional luxury. I thank the Minister most warmly. I had intended to probe one or two points in the amendment, but the Minister has already answered entirely to my satisfaction the main question that I wished to ask. In any case, it is too late at night for looking gift horses in the mouth. I thank the Minister again and advise the House that I shall not be moving my own amendments.

Lord Lester of Herne Hill: My Lords, I very much welcome these government amendments. During the debate of the immigration appeals Bill I remember that the Minister indicated that the mere fact of incorporation of the convention would solve the Chahal-type problem. The advantage of these amendments is that, for the avoidance of doubt as well as dealing with any inconsistencies in primary legislation, they ensure that the position of adjudicators, and of all tribunals, can be dealt with.

I have but one observation to make. If only this had happened under the European Communities Act 1972 it would have been most beneficial as years were wasted in argument--for example, before industrial tribunals--as to whether they had jurisdiction to give effect to Community law. The advantage of this approach is that it will enable the Minister in charge of the procedures and the rules at each tribunal to deal with the matter tribunal by tribunal, without relying upon the command to the judges and tribunals to construe legislation where possible to accord with the convention. I therefore regard this as admirable as, for the avoidance of doubt, it deals with an important practical problem. I go well beyond the immigration sphere in saying so.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 31:

Page 5, line 8, at end insert--
("( ) The provisions of this Act do not affect any rule of law which prevents the High Court of Justiciary and the Court of Session in Scotland from reviewing the decision of the Lord Advocate as to whether or not to prosecute a particular individual.").

The noble and learned Lord said: My Lords, Amendment No. 31 involves returning to an issue that I raised in Committee; namely, the question of whether the provisions of the Bill would have the effect of introducing into the law and procedure of Scotland review by the courts of a decision by the Lord Advocate as to whether or not to prosecute an individual accused.

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When the matter was debated on the second day of the Committee stage on 24th November, at col. 803 of the Official Report, I set out the position that currently applies in Scotland. It is clearly an important matter. In view of the lateness of the hour, I shall not repeat in detail what I said then.

The current procedure in practice is that neither the civil nor the criminal courts in Scotland will entertain proceedings, whether at the instance of an accused man or his alleged victim, seeking to review the decisions as to whether the Lord Advocate should prosecute in a particular case and, if he decides to do so, on what charge such a prosecution should be brought. There is also the position in relation to the procurators fiscal who, as your Lordships know, initiate and conduct summary criminal proceedings in the various sheriff courts throughout Scotland.

In moving the amendment, I do not for a moment suggest that all the activities of the Lord Advocate, and his colleagues in the Crown Office and the procurator fiscal service should be excluded from the ambit of the Bill. Indeed, I am sure that any Lord Advocate, discharging his duties as an independent public prosecutor, would not only wish to follow but would seek to enforce a policy designed to achieve adherence with convention rights. However, the courts in Scotland, at least until this moment, will not seek to inquire of a Lord Advocate why he has reached his decisions and will not therefore seek to review the soundness of them.

When the issue was last debated, the noble and learned Lord the Lord Chancellor promised to write to me about the matter. Again I am grateful to the noble Lord, Lord Williams, for having taken the trouble to do so in ample time for me to put down the amendment. In his letter, the noble Lord confirms what had been accepted on all sides during our debates in Committee; namely, that the Lord Advocate is a public authority within the meaning of Clause 6. He also confirmed what I asserted in Committee; namely, that it is possible to envisage circumstances in which a decision as to whether or not to prosecute could arguably be said to infringe a convention right. He therefore accepted what I think the noble and learned Lord the Lord Chancellor had been reluctant to accept when we last looked at the issue: that these decisions might infringe convention rights.

The noble Lord went on to suggest that it would seem natural for any judicial challenge to a decision to be brought, as appears to be the position in England, by way of judicial review in the civil courts. In a kindly manner, and with the sense of humour with which we now associate the noble Lord, his letter went on to reassure me by stating that he did not believe this should be a matter of concern. He stated that decisions not to prosecute have already been reviewed in England where the courts have not adopted the strict self-denying ordinance followed by the Scottish courts. I pause to observe that I had not previously associated members of the judiciary in Scotland with self-denying ordinances. He went on to say that the case law here--referring to England--has shown the courts to be very careful when exercising their jurisdiction. They have used their

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discretion to intervene sparingly and their role has not been to second guess the decision taken by the prosecutor.

I have no difficulty in accepting that were such a jurisdiction to be introduced in Scotland, it would be exercised with caution. Nevertheless, I believe that it would be a serious mistake to proceed along those lines--a view which I have reason to believe is shared by others involved in the criminal justice system in Scotland.

One thing that troubles me about this jurisdiction is that it is a necessary consequence of the Bill in its present terms which was entirely unheralded by any form of consultation, which yet again failed to receive any mention in the White Paper, and which so far as I am aware has not received any attention in speeches by government Ministers. Indeed, until the very helpful letter was received by me from the noble Lord, Lord Williams, no public recognition had been made by any Minister that the decisions of a Lord Advocate might be susceptible to review against convention rights. I have to wonder whether this is the correct way to go about introducing major constitutional change. It is a major change that will affect the constitutional relationship between the Lord Advocate and the courts in Scotland. Your Lordships are being invited to approve the provision without being informed of the considered views of those involved in the criminal justice system.

Not only the courts, but Parliament itself, has refrained from seeking from the Lord Advocate reasons why a decision has been taken in a particular court. That is evidenced by the practice observed by successive Lord Advocates in responding to Written and Oral Questions in Parliament; in the standing order which governs the remit of the Select Committee on Scottish Affairs in another place; in the remit of the Parliamentary Commissioner for Administration; and in the practice that has been observed in establishing and operating successive inquiries, most recently in the Dunblane inquiry following the tragedy in Dunblane.

Clause 26 of the Scotland Bill provides that in answering questions to the Scottish Parliament it is proposed that the Lord Advocate and the Solicitor-General may decline to answer any question or produce any document relating to a particular criminal prosecution if he considers that to do so might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest. It is therefore surprising that in one Bill this convention is being recognised while in another it is being breached to some extent.

As I have indicated, others share my concern. The Dean of the Faculty of Advocates, to whom I have spoken since this matter was before the House at Committee stage, advises me that the Faculty of Advocates considers that there are strong public policy grounds for excluding the Lord Advocate's decision from review. The Dean's own view is that it is difficult to see how the system could function effectively if Crown Office decisions were open to challenge by individuals intent on causing delay, disruption and expense.

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Notwithstanding the firm, albeit polite, terms of the letter I have received from the noble Lord, Lord Williams, I do not hold any great hopes of persuading the Government to change their mind. However, I do pose a number of questions which I hope will be answered and may prompt at least some movement on the Government's part. It would be of assistance to the House for the noble and learned Lord the Lord Advocate to inform your Lordships as to why there has been no consultation on this proposal. It might be helpful if he explained to the House, and ultimately to the courts which might have to exercise this jurisdiction, why it is considered necessary to depart from a practice that has served the criminal justice system in Scotland well.

Why is the jurisdiction to be one exercised by judicial review, which as I understand it would involve the jurisdiction being exercised by the Court of Session, the superior civil court in Scotland? That is a fundamental issue. That court traditionally has had no role to play in criminal prosecutions. Moreover, for the jurisdiction to lie with that court would admit the possibility of appeals to the Appellate Committee of this House. As noble Lords will be aware, there is no right of appeal in criminal cases from the High Court of Justiciary to the Appellate Committee, and hence there would be a novelty there as well. If there is to be this jurisdiction, should it not lie with the High Court of Justiciary?

These are important matters. It is most unfortunate that they arise without any proper focusing, either in a White Paper or any other quarter. I move the amendment in order to give other noble Lords present the opportunity of contributing to the debate; but, more importantly, I move it in order to enable the noble and learned Lord the Lord Advocate to address and provide answers to the questions I have raised. I beg to move.

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