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Lord Sewel moved Amendment No. 145E:

Page 23, line 28, at end insert--
("(4) Any power referred to in section 49(2)(a) to establish, maintain or abolish a body, office or office-holder having functions which include both--
(a) functions which are exercisable in or as regards Scotland and do not relate to reserved matters, and
(b) other functions,
shall, despite that section, be exercisable jointly by the Minister of the Crown and the Scottish Ministers.
(5) In subsection (4), "office-holder" includes employee or other post-holder.").

The noble Lord said: My Lords, I beg to move Amendment No. 145E and speak also to Amendment No. 173B. Amendment No. 145E is a technical amendment. It simply enables the Scottish Ministers and UK Ministers to act jointly to establish, maintain or abolish a body, office or office-holder with functions which cross the reserved devolved boundary, notwithstanding the transfer of powers to Scottish Ministers by Clause 49. This is an entirely straightforward amendment which complements the provisions in Clauses 84 to 86 for cross-border public authorities.

Amendment No. 173B is consequential upon Amendment No. 145E. It adds the power introduced by Clause 52(4) to the list of provisions in Clause 85 which may be modified by Order in Council.

On Question, amendment agreed to.

Clause 53 [Community law and Convention rights]:

Lord Hardie moved Amendment No. 145F:

Page 23, line 36, at end insert--
("(3) Subsection (2) does not apply to an act of the Lord Advocate--
(a) in prosecuting any offence, or
(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,
which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section.").

The noble and learned Lord said: My Lords, in moving Amendment No.145F I should like to speak also to Amendment No.230A. This is part of the package of technical amendments to ensure that the relationship between the Scotland Bill and the Human Rights Bill works properly. Noble Lords agreed to the earlier part of the package on the penultimate day of Committee. The earlier amendments ensured consistency between the Bills on title and interest, definitions and commencement provisions. These amendments deal with the position of the Lord Advocate. Amendment

28 Oct 1998 : Column 2041

No. 145F ensures that the Lord Advocate is able to rely on the protection afforded by Clause 6(2) of the Human Rights Bill when he is prosecuting an offence or acting in his capacity as head of the systems of criminal prosecution and investigation of deaths.

Clause 6 of the Human Rights Bill provides that it is unlawful for a public authority which would include the Lord Advocate to act in a way that is incompatible with a convention right. Clause 6(2) provides that it is not unlawful if the act of the public authority was because it could not have acted differently as a result of primary legislation or the public authority was acting to give effect to provisions made under primary legislation. This is intended to protect a public authority where a Westminster Act required it to breach a convention right.

The amendment ensures that this protection is also afforded to the Lord Advocate where it is alleged that he has breached Clause 53(2) of the Scotland Bill which requires him to act compatibly with the convention rights. This ensures that the Lord Advocate could prosecute an offence contained in a UK Act even if it were in contravention of a convention right. Without the amendment the offence could be prosecuted by the Crown Prosecution Service in England but not by the Lord Advocate. The amendment also allows him to act in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland if he is acting as required by a provision of the UK Act. Without the amendment disapplying Clause 53(2) he could not act in this way.

Amendment No. 230A is a consequential amendment that adds Clause 53(3) to Clause 121(2) which makes provision as to what happens to those provisions of the Scotland Bill which refer to the Human Rights Bill if they are commenced before the Human Rights Bill. It provides that they are to have effect as they will have effect when the Human Rights Bill is in force. I beg to move.

Lord Mackay of Drumadoon: My Lords, I can well understand why this amendment has been tabled. For the reasons given by the noble and learned Lord, the amendment seeks to make the provisions of this Bill compatible with those of the Human Rights Bill. But I find it slightly surprising that it is contemplated that the Lord Advocate would ever consciously act in the knowledge that by so doing he would contravene the convention rights of either an accused person or somebody affected by the discharge of his role in investigating sudden deaths in Scotland. I find that difficult to reconcile with the position explained by the noble and learned Lord during the Human Rights Bill: that he was happy to accept that his decisions as public prosecutor would be reviewable against convention rights.

It would assist me if the noble and learned Lord could give some practical examples of primary legislation which are prima facie in breach of convention rights which would require the Lord Advocate to act in a way contrary to or incompatible with convention rights. It might persuade me that it was in the public interest that

28 Oct 1998 : Column 2042

this Parliament should give him statutory authority to proceed in the way provided in the amendment. As at present advised, having regard to the fact that the Lord Advocate has a discretion, I find it difficult to believe that any prosecution would be mounted if it were known in advance that convention rights were to be breached in some way by taking the prosecution to a conclusion.

Lord Hardie: My Lords, as the noble and learned Lord is aware from his own experience, the question of whether or not to prosecute is always one of balance. One has to weigh up various factors.

What is being contemplated--I am not sure that I can think of a specific example--is United Kingdom legislation which creates an offence but which itself was contrary to the convention. As the noble and learned Lord will be aware, that could be a conscious decision of this Parliament: to decide to pass legislation in contravention. As long as it was declared to Parliament, that would be a possibility. If an offence were created across the United Kingdom under a UK statute it would be appropriate that one of the considerations for the Lord Advocate would be whether he or she wished to prosecute in Scotland for that offence. Just as the Crown Prosecution Service in England could prosecute, it would be invidious if the Lord Advocate were precluded from prosecuting for the statutory offence under the United Kingdom Act simply because it contravened the convention right.

At this stage, I am unable to think of specific examples. Perhaps I may give consideration to that, and if I can think of a specific example I shall write to the noble and learned Lord and put a copy in the Library.

Lord Hope of Craighead: My Lords, will the noble and learned Lord explain what is meant by "in prosecuting"? Am I right to understand that the purpose of the amendment is to deal with decisions as to whether or not to prosecute, and not with the manner in which a prosecution is conducted? The distinction may be important in considering the rights of a person who is brought before the court. I think that the court would feel more comfortable if it were still open to challenge the manner in which an accused person were dealt with, bearing in mind the importance that the convention attaches to the right to a fair trial.

Lord Hardie: My Lords, I agree entirely with the noble and learned Lord that that is the position. I sought to explain to the noble and learned Lord, Lord Mackay of Drumadoon, that a UK Act may create an offence. The decision to prosecute in that situation may infringe a human right; that would be a factor. I would not contemplate the conduct of the prosecution being contrary to human rights--in other words, depriving an accused of legal representation, or anything of that kind. That is not what is being contemplated.

On Question, amendment agreed to.

Clause 54 [Power to prevent or require action]:

[Amendment No. 146 not moved.]

28 Oct 1998 : Column 2043

Lord Mackay of Drumadoon moved Amendment No. 146A:

Page 23, line 39, leave out from ("may") to end of line 40 and insert ("apply to the appropriate court for a declarator or declaration to that effect.").

The noble and learned Lord said: My Lords, I debated this amendment in Committee on 30th July at col. 1624 and I need not go over the matter in great detail. I confess that the relatively short argument I advanced then is the one to which I adhere now.

The purpose of the amendment is that if the Secretary of State is of the view that the Scottish executive has acted or refused to act in a way which gives rise to a measure of incompatibility with either international obligations or the interest of national security and defence he should have two options. The first is to go to the court and seek a declarator to that effect directed against the Scottish executive. The alternative is to exercise an order-making power and to take action at his own hand.

The problem with the clause as presently drafted is that it gives to the Secretary of State power to direct the Scottish executive along the lines set out in the clause. In particular, he can direct them to take action which, one sees from subsection (3), can include making, confirming or approving subordinate legislation and introducing a Bill to the Scottish parliament.

I believe that if a Secretary of State were ever to make such an order and direct the Scottish executive, in all probability of a different political party, either to make subordinate legislation or to introduce a Bill to parliament that would provoke a political crisis of major significance. He should have two alternatives. One is to go to court for a ruling. Then it is up to the Scottish executive to decide what to do in the light of such a ruling. Alternatively, he should take action at his own hand, make his own order, which will be subject to judicial review in the courts if he exceeds the powers given under Clause 54. I beg to move.

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