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Lord Hardie: My Lords, as the noble and learned Lord observed, at an earlier stage I indicated that I would consider the matter. The Government have done so and I regret that we are unable to accept the amendments, which seek to remove the possibility of

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the Lord Advocate facing judicial review where in his judgment a question should not be answered or a document should not be produced to the parliament.

Amendment No. 111 would rule out the possibility of the courts being able to review a decision by the Lord Advocate or the Solicitor General to decline to answer a question or to produce a document about a particular criminal case on the ground that he considers that doing so might prejudice the proceedings in that case or would otherwise be contrary to the public interest.

The Government believe that the Bill as drafted strikes the right balance between the independence of the Lord Advocate in exercising his prosecution functions, and the independence which both the courts and Parliament recognise, and his accountability.

I accept that this is a very sensitive area, but, as I have already explained, we really do believe that we could not justify such an absolute bar as the amendment proposes. Nor do we believe that it would be necessary in practice in order to preserve the independence of the law officers. The mere fact that the courts could be asked to reach a judgment on this issue would not in itself undermine the independence of the Lord Advocate. Indeed, in extreme circumstances it might act as a safeguard, a point to which I shall return.

In any case, should such a case arise, I believe that we can expect the courts to be extremely keen to protect the independence of the law officers in reaching any decision, not only because that is the position which the courts adopt at present but also because the Bill recognises the importance of the law officers having the necessary independence of the executive when they are exercising the special functions of prosecutions or investigations of sudden deaths.

Amendment No. 108A relates to procurator fiscal. Clause 23(11) provides that a procurator fiscal is not obliged to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if the Lord Advocate considers that answering a question or producing a document might prejudice criminal proceedings in that case, or otherwise would be contrary to the public interest, and has authorised the procurator fiscal to refuse to answer a question or produce a document. Similar to Amendment No. 111, Amendment No. 108 would prevent any court from reviewing a decision from the Lord Advocate under Clause 23(11).

I have to say that we are not aware of any recent attempts to use the courts to force procurators fiscal to give evidence about the handling of cases. The most recent instance in Scotland of a procurator fiscal giving evidence at judicial proceedings was at the Dunblane fatal accident inquiry. However, in relation to those proceedings, the procurator fiscal depute was authorised by the noble and learned Lord, who was then Lord Advocate, to appear at the proceedings and was given strict guidance in relation to the questions that he should answer. Given this background, we should expect the courts to be reluctant to question the judgments of the Lord Advocate in this area.

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Moreover, as I have already suggested, I am not entirely persuaded that the amendment would strengthen the independence of the Lord Advocate. Assuming that the courts would be jealous to guard that independence, it is certainly possible to imagine that it might assist the Lord Advocate if he is able to demonstrate, in the extreme circumstance of his judgment being challenged, that the courts support his view. A future Lord Advocate might yet have cause to rue the day that that possibility was closed off.

I accept that the amendments are well intentioned and raise important matters. However, as I have indicated, I believe that they are unnecessary and I hope that the noble and learned Lord will feel able to withdraw them.

Finally, perhaps I may deal with a point that the noble and learned Lord raised. The Lord Advocate is a member of the Scottish executive and would be covered by the provisions in Schedule 6, including in respect of his actions as head of the system of criminal prosecution. That is consistent with what I have said hitherto. I hope that in those circumstances the noble and learned Lord will withdraw his amendment.

Lord Mackay of Drumadoon: My Lords, the noble and learned Lord will interrupt me if I am wrong, but I assume that that covers the actions of procurators fiscal as being officials of a member of the Scottish executive.

The noble and learned Lord rightly said that in the event of such an issue coming before the court, the court would treat it as one of great sensitivity and would seek if at all possible not to interfere with a proper exercise of the discretion of either the Lord Advocate or a procurator fiscal. My concern is to cut off any such court actions at source. It may be that that is unnecessary. Although I find it difficult to imagine that a Lord Advocate would welcome having a particular case reviewed in court, I accept that it is possible some time in the future. In those circumstances, I beg leave to withdraw Amendment No. 108A.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 109:

Divide Clause 23 into two clauses, the first (Power to call for witnesses and documents) to consist of subsections (1) to (7), (10) and (11) and the second (Witnesses and documents: notice) to consist of subsections (8) and (9).

The noble and learned Lord said: My Lords, this is a technical amendment. I beg to move.

[Amendment No. 109A, as an amendment to Amendment No. 109, not moved.]

On Question, Amendment No. 109 agreed to.

Clause 24 [Witnesses and documents: offences]:

Lord Hardie moved Amendment No. 110:

Page 12, line 45, leave out ("relating to the matters") and insert ("concerning the subjects").

On Question, amendment agreed to.

Clause 26 [Participation of the Scottish Law Officers]:

[Amendment No. 111 not moved.]

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Clause 27 [Acts of the Scottish Parliament]:

Lord Hardie moved Amendment No. 112:

Page 14, line 20, leave out from first ("of") to end of line 22 and insert ("an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.").

The noble and learned Lord said: My Lords, I beg to move.

Lord Mackay of Drumadoon: My Lords, before the amendment is agreed to, perhaps I may raise in the Chamber a matter about which I wrote to the noble Lord, Lord Sewel, at the weekend. I requested that the Government make clear the full intentions of the amendment, in particular what is encompassed by the words "invalidity".

This is an issue on which we have touched from time to time in our discussions and debates on the Bill. On the last day of Committee, when discussing the effects on an Act of the Scottish parliament if it had been passed without standing orders being complied with or in contravention of some particular provision of standing orders, the noble and learned Lord the Lord Advocate indicated that any such challenge would be precluded by Clause 27(5) in its current terms. That subsection is being recast by this provision.

In addition to precluding challenge based on failure to comply with standing orders or some confusion as to the voting that took place, I am interested to know what other matters are covered by the word "invalidity". That is part of the wider issue of Parliamentary privilege with which we shall deal later on in our debates on Report. I am interested to know whether it is the Government's intention that Clause 27(5), as they propose to amend it, would exclude any inquiry by a court as to whether or not Parliament had available to it sufficient material, testimony or evidence which justified it enacting particular statutory provisions in the terms in which they wished. I wish to know also whether there were any circumstances in which it would be competent for the court to go behind the letter of the provision of an Act of the Scottish parliament to see whether it had come into being because of some misapprehension on the members' part as to what was the current state of the law; or the factual position relating to the substance of the provision; or any deception, whether innocent or otherwise, in somebody misleading a Committee which had looked to the Bill before it finally became an Act of the Scottish parliament.

Those are all issues which the courts would refuse to entertain in considering legislation passed by your Lordships' House and another place. Therefore, I seek to inquire of the Government what are the full ramifications of Amendment No. 112.

5 p.m.

Lord Renton: My Lords, I support my noble and learned friend in this matter. The rules of order which are bound to be observed and which should be observed in the Scottish parliament will be of no effect if legislation is passed in contravention of those rules.

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On many occasions that would not matter very much. It might be a very minor contravention. But rules of order, certainly in another place in our Parliament, provide that in financial matters certain rather rigorous procedures must be followed in order that the financial provisions may be of full effect. I just wonder what would be the result in the Scottish parliament if a rule of order governing a financial matter had not been observed.

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