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Lord Clyde: My Lords, it is unfortunate that matters of such immense significance so far as Scotland, its history and constitution are concerned are raised at the hour of midnight among an assembly which, while distinguished, is small in number. I share the serious concern expressed by the noble and learned Lord, Lord Mackay of Drumadoon, on this issue. Your Lordships will recall the more extensive explanation which he gave when this matter arose at earlier stages.

The problem may be one of interpretation and construction of the words "public" and "private". I venture to return to the suggestion that I made earlier that those words will require close construction. I have listened to much of the debate this afternoon, this evening and this night in order to try to obtain a clearer understanding of what they mean. While, as I suggested earlier, they are well used in England to try to work towards a distinction between matters which may be subject to judicial review and matters which may not, as far as I am aware no one has yet given a satisfactory, substantial construction and understanding of them.

It may be that in effect the words do no more than provide a label to represent those things which the courts will think it right to consider and those which they will not. If they are simply labels to refer to the

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supervisory jurisdiction, it may well be that the courts can continue to observe the respect which they have had or, as the noble and learned Lord put it, the self-denying ordinance which the Scottish judges have so far exercised. If that is what the words mean, it could well be that the noble and learned Lord the Lord Advocate, as a public authority, is, where he is exercising the function of determining whether to prosecute or not, performing what in this case is a private function because it is a function which is not open to the scrutiny of the court. If that is what the words mean, I am satisfied that the amendment is unnecessary. If it is not, I continue to have the gravest concern about them. I too should be grateful to hear from the noble and learned Lord the Lord Advocate what the function, effect, purpose and object of this provision is and how he can, consistent with the long traditions of the office which he holds, see what has been a treasured and respected right disappear, if that is the intention of the legislation.

The Lord Chancellor: My Lords, I am disappointed that I have to disappoint the noble and learned Lord, Lord Clyde, and reply to the amendment myself on behalf of the Government. The reason that the Government are not willing to accept the amendment is that to do so would, given the central role played in our criminal justice system by independent public prosecutors, create a significant gap in the protection provided by the Bill. The amendments seek to restrict the ability of individuals to rely on their convention rights; the public authority in question is the Lord Advocate or the Director of Public Prosecutions.

This is a subject on which my noble friend Lord Williams of Mostyn has written to the noble and learned Lord at some length. The noble and learned Lord complains about a want of consultation. We are content to consider any further representations that the noble and learned Lord chooses to make. Indeed, my noble friend Lord Williams of Mostyn has already given a response which the noble and learned Lord has been good enough to acknowledge is a very full one.

It is the case that decisions not to prosecute have been reviewed in England where the noble and learned Lord suggests that the Scottish courts would be unwilling to review. Certainly, case law in England has shown the courts to be very careful when exercising their discretion in this area. I am sure that the courts in Scotland, when considering whether to review a decision concerning the bringing of a prosecution on convention grounds, would pay due regard to the factors which have influenced the prosecution and would allow the Lord Advocate an appropriately generous discretion.

The noble and learned Lord asks: why the Court of Session rather than the High Court of Justiciary? We will consider any representations that are made; but the immediate response would be that the natural court to consider complaints of denial of convention rights would be a civil court and not a criminal court. Nor, is it argued, is there any inconsistency with the established rule--established, I believe, since the Act of Union--that on matters of criminal law no appeal lies in Scotland to the House of Lords.

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For these reasons, although we are content to consider any further representations that the noble and learned Lord chooses to make or, indeed, that the noble and learned Lord, Lord Mackay, chooses to make, we do not share their concern about the implications of the Bill for the Lord Advocate or for the Director of Public Prosecutions. We therefore invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: My Lords, I have to say very frankly to the noble and learned Lord the Lord Chancellor that I find his response disappointing in a number of respects. He did not explicitly face up to the point made by the noble and learned Lord, Lord Clyde, as to whether the decisions with which this amendment is concerned are what one would call public functions or private functions.

More importantly, he seemed to suggest that it was for me to go off and consult the major elements in the criminal justice system--the court, the faculty, the Law Society and any other body which might have an interest in this matter--and that it was for me to collect together any views they may have and consider whether any further amendment is required.

With the greatest respect, I find that mildly surprising. I would have thought that it was incumbent upon the Government, who, on any view, are introducing a constitutional change into the criminal justice system on the eve of handing over the criminal justice system to a devolved parliament, to seek the views on, for example, the critical issue of whether this jurisdiction is to be exercised by the High Court of Justiciary on the one hand or the Court of Session on the other. That is a matter I would have expected the Government to have

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raised with the Lord Justice General so that he could consult with his colleagues, and a report as to their collective view could then be made known to the Government so that they could consider the position and consider whether an amendment is required. I am quite happy to do so; but I have to say that it is a somewhat strange jurisdiction for an Opposition spokesman to have to exercise.

In the light of the invitation that has been given, I propose to do so; and in the light of the lateness of the hour, I seek leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Henley: My Lords, Amendment No. 32 was originally grouped with Amendment No. 31. We should like to take this separately from Amendment No. 31. I wonder whether now would be the moment when we might hear from the Chief Whip.

Lord Carter: My Lords, I beg to move that further consideration on Report be now adjourned. For the convenience of the House, I hope to make a statement after Questions tomorrow regarding further progress on the Bill.

Moved accordingly, and, on Question, Motion agreed to.

Shrewsbury and Atcham Borough Council Bill [H.L.]

Presented and read a first time.

        House adjourned at fifteen minutes past midnight.

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