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The Duke of Montrose: I am glad that we have had a chance to go into the Scottish issue. I am grateful for the clarifications brought out by the noble and learned Lord, Lord Cameron. I was interested that in a reply to an earlier question the Minister seemed a little unsure about approaching the procurator fiscal, but she tried to make a rather more robust argument than in this reply.
In following up the questions raised by my noble friend Lord Forsyth, it interests me as a curiosity that we have nominally a Secretary of State for Scotland in the Government. I do not know what role he would have. While looking at the provision earlier when our impression was that the Home Secretary might be trying to give directions to a chief constable, the Law Society of Scotland raised with me that at the same time he would have given information to the Lord Advocate. We are now saying in a stronger way that the Lord Advocate is the more senior law officer and that is perhaps where the process should begin.
Baroness Scotland of Asthal: First I will clear up the concern over consultation of the noble Lord,
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Lord Forsyth. We accept and rejoice at the fact that devolution has taken place and that Scotland has so nobly discharged her responsibilities in that regard. The reality means that those matters that are properly devolved have been devolved. The Secretary of State for Scotland remains a full member of Her Majesty's Cabinet. The decisions as to the full nature of the legislation are government decisions, which would include the Secretary of State for Scotland in consideration as a full member of that Cabinet.
Secondly, your Lordships will see that the first draft of these provisions included the Lord Advocate. That was at the instigation of our Scottish colleagues following consultation. We were subsequently told by them that the Lord Advocate was not the appropriate person and in his stead should be substituted procurators fiscal for the following reasons. The chief officer of the relevant forcenot the Secretary of Statewill consult the procurators fiscal in each area. Of course, the duty is placed on the relevant authorities to keep the matter of prosecution under review. That link between the chief officer and the individual procurators fiscal, who will be responsible for the prosecution, means that it is structured in that way.
How such matters should best be expressed to meet the Scottish construct has been considered in full consultation with our Scottish colleagues, so that the provisions best reflect what they believe is most appropriate for Scotland. I can certainly say to the noble Lord, Lord Forsyth, that these consultations continue, as is proper, but perhaps Scotland is enhanced in her ability to act in a way that she deems appropriate on those matters that are devolved. In no way do they undermine the nature of consultation that takes place before we put in place UK-wide provisions.
Lord Forsyth of Drumlean: I do not want to prolong the matterwe may return to it at a later stage. I believe that that is a deeply unsatisfactory response. We are not talking about an administrative matter. We are talking about the Home Secretary being able to contact a procurator fiscal in Scotland
Baroness Scotland of Asthal: No, the Secretary of State will not contact procurators fiscal. It would be quite improper for him to do so. The chief officer, whose proper duty it is to consider such matters, will be the person responsible for contacting the procurators fiscal. One may fundamentally misunderstand the necessary separation but it has to take place for the democratic situation that we now have to continue, with independent separation of prosecution away from the Secretary of State.
Lord Forsyth of Drumlean: I stand corrected. The Minister is quite right. I was taking a short cut. However, I cannot help pointing out that, in other legislation before the House, the Government seek to take more controls over chief police officers than has previously been the case, both north and south of the Border. Indeed, an amendment giving the First
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Minister powers to give directions to chief constables has been moved and that is certainly a constitutional innovation.
Returning to my point, the Minister is quite correct to say that the Home Secretary contacts a Scottish police officer who then contacts the procurator fiscal. That is the procedure that has been put in place. That means that the First Minister of Scotland, who is democratically accountable for the Justice Department and for the police service in Scotland, is not involved in the process at all and will know nothing about it, whereas in the past the Secretary of State for Scotland was involved.
The Minister is raising her eyes as though this is a minor matter. These are very important considerations. In the past the Secretary of State for Scotland had responsibility for police forces in Scotland. There are great sensitivities about this matter. It seems to me that these provisions bring in a very novel procedure, which effectively leaves out of the equation the law officers, who, as has been pointed out, are the prosecuting authority. These days the title "Secretary of State for Scotland" seems to be more a ceremonial title than anything else; it is as relevant as "Keeper of the Great Seal" was as part of the previous title of the Secretary of State for Scotland. The Secretary of State has no interaction with the Justice Department or the police because those are devolved matters.
Here we have all the ingredients for mistakes to be made and for offence to be created within Scotland by pursuing these procedures, which appear to be a great departure from what we have had in the past, when we have had some local, democratic control of those kinds of activities which, by their nature, are not perhaps always in the public domain.
The Earl of Onslow: Perhaps I may introduce a totally different issue. By this amendment the prosecuting authorities are to continue to look for evidence. That is perhaps how it can be best précised. If they come up with evidence to show that a man has had nothing to do with a situation, and he is not really called Abdul al-Smith, but he is actually an elder of the kirk in Ullapool or somewhere, I hope that evidence will be reported back as soon as possible, the chap released as soon as possible and the mistake admitted. The evidence has to be evidence of either conviction or innocence. Both are equally important matters of evidence.
It is not the slightest bit surprising that Scottish devolution is returning to haunt Ministers by such little matters coming out of the woodwork and making the whole situation look odd and difficult. If I am allowed to mix metaphors, that particular egg in the cuckoo's nest was waiting to hatch.
Baroness Scotland of Asthal: I can tell the noble Earl, Lord Onslow, that the review is a total review. Of course, we shall look at all the evidence that comes before the authorities to consider how best to act. I have already said that if the conditions imposed appeared, on reflection, no longer to be necessary, they
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could be revoked. If there were a fresh investigation that demonstrated that the orders were no longer necessary, of course, we would do that.
(a) a non-derogating order has not been confirmed or renewed, or
(b) an obligation imposed by a non-derogating order has not been modified on the application of the Secretary of State,
the Secretary of State may appeal to the appeal court against the refusal to confirm, renew or modify the order."
The noble Duke said: Amendment No. 129 will add a couple of small paragraphs to the clause. The effect of the amendment creates a right of appeal for the Secretary of State in respect of various decisions of the court relating to the order. The reason for the amendment is that if the court is to make a determination in relation to confirmation, renewal and modification of the original order, it is appropriate that the Secretary of State is given the right to appeal refusal of an application to an appeal court. The definition of "appeal court" is provided in a subsequent amendment. I beg to move.
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