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Lord Wallace of Tankerness: My Lords, I certainly take that point on board. I was only too delighted to put in motion that training programme. In no way was this amendment intended to reflect on the integrity of justices of the peace in Scotland. With all due respect to the noble and learned Lord the Advocate-General for Scotland, the noble Lord, Lord Davies, delivered his response in a very eloquent and learned way and with the panache with which we have come to associate him. He put forward a very compelling case. However, the part I found least compelling concerned authority and the approval of the current Scottish Executive. That to me is not necessarily the most compelling argument to use. Moreover, it is important to point out that the Scottish Marine Bill was published only in the past two or three weeks, so it has not yet been subjected to parliamentary scrutiny. The Scottish Parliament may take a different view from the Scottish Executive on whether justices of the peace should be given this power. I have no doubt—unless, having read what the noble Lord has said, the Law Society of Scotland chooses to revise its position—that Mr Michael Clancy, who is ever diligent in these matters on behalf of the Law Society of Scotland, will suggest amendments, which will find their way on to the desks or into the inboxes of umpteen Members of the Scottish Parliament. We may well find that the Scottish Parliament comes to a different view from that expressed by the Scottish Government in their Bill. Nevertheless, the noble Lord has made a good case for us not to press the matter at

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the moment. As he says, precedents are always dangerous and to introduce one in Clause 239 of the Marine and Coastal Access Bill is probably not the best way to start the revolution. I beg leave to withdraw the amendment.

Amendment 123 withdrawn.

Amendment 124 not moved.

Clause 255 : Reports of inspections under section 254

Amendment 124A

Moved by Lord Davies of Oldham

124A: Clause 255, page 154, line 20, at end insert—

“( ) In a case where the officer, after taking reasonable steps to do so, is unable to identify any person as owning the object, the officer must take such steps as the officer thinks fit to bring the contents of the report to the attention of persons likely to be interested in it.”

Lord Davies of Oldham: My Lords, after the dizzy heights of Scottish law we enter the rather more prosaic elements of government Amendments 124A and 124B. These amend Clause 255 to place a duty on individual officers as well as the relevant authority to bring the contents of an inspection report to the attention of any persons likely to be interested in it when objects are inspected at sea. Amendment 124C simply corrects an incorrect reference to “authority” rather than “officer” in Clause 260(5). Amendment 124D clarifies the person to whom the proceeds of sales of seized fish must be returned when the enforcement authority decides not to take proceedings or proceedings are concluded without an order for forfeiture being made.

Amendment 124E to Clause 282 replaces the word “Act” with “Part” in subsection (1)(a). This has the effect of restricting the offence of not complying with an enforcement officer's requirement to powers exerted under Part 8 rather than the Act itself. The amendment is needed to ensure that there is no chance that not complying with a statutory notice under Part 4 could also be an offence of not complying with an officer's requirement under Part 8. The offences under Clauses 89, 100 and 102 in Part 4, carry a higher penalty than that under Clause 282(1)(a) reflecting possible harm that can result from a licensing offence. We do not wish there to be ambiguity in the penalties that someone might face and so have tabled this amendment to remove any overlap. I hope that noble Lords will see merit in these amendments. I beg to move.

Amendment 124A agreed.

Amendment 124B

Moved by Lord Davies of Oldham

124B: Clause 255, page 154, line 38, after “requirement” insert “for the authority”

Amendment 124B agreed.

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Clause 260 : Procedure in relation to seizure under section 258 or 259

Amendment 124C

Moved by Lord Davies of Oldham

124C: Clause 260, page 158, line 24, leave out “authority” and insert “officer”

Amendment 124C agreed.

Clause 263 : Power of relevant authority to sell seized fish in its possession

Amendment 124D

Moved by Lord Davies of Oldham

124D: Clause 263, page 159, line 43, leave out from “authority” to end of line 44 and insert “to have been the owner, or one of the owners, of the fish at the time of the seizure of the fish.”

Amendment 124D agreed.

Amendment 124DA had been retabled as Amendment 124U.

Clause 282 : Offences in relation to enforcement officers

Amendment 124E

Moved by Lord Davies of Oldham

124E: Clause 282, page 168, line 22, leave out “Act” and insert “Part”

Amendment 124E agreed.

Lord Davies of Oldham: My Lords, I propose that we adjourn further consideration on Report until another date. In so doing, I wish to add that I appreciate the precise way in which the House has addressed the amendments today.

Consideration on Report adjourned.

Scotland Act 1998 (Modification of Schedule 4) Order 2009

Scotland Act 1998 (Modification of Schedule 4) Order 2009
12 Report Joint Committee Statutory Instruments

Motion to Approve

5.57 pm

Moved By Lord Davidson of Glen Clova

The Advocate-General for Scotland (Lord Davidson of Glen Clova): My Lords, this order was approved by the other place last week. The purpose of the order is to amend Schedule 4 to the Scotland Act 1998. This will enable the Scottish Parliament to create a time

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limit for proceedings brought under the Scotland Act, where the proceedings allege that Scottish Ministers or a Member of the Scottish Executive have acted in breach of convention rights similar to that which exists in relation to such claims brought under the Human Rights Act 1998. By doing so we will achieve a pragmatic solution to an issue highlighted in the Somerville case before the Judicial Committee of this House.

The Secretary of State for Scotland and the First Minister jointly announced on 19 March this year that this order would be introduced before Parliament and the Scottish Parliament. As required, the order has been laid in draft before both Houses of this Parliament and the Scottish Parliament. This order is made under Section 30(2) of the Scotland Act, which specifically provides a mechanism by which amendments may be made to Schedules 4 and 5 to the Scotland Act. Such orders can be used to adjust the boundaries of the Scottish Parliament's legislative competence by adjusting existing reservations or their exceptions, or by removing or adding matters from the list of reserved issues and protected enactments.

This power has, of course, been used before. Since 1999, nine orders have been made under Section 30(2) of the Scotland Act. These orders demonstrate a pragmatic approach to the devolution settlement and the flexibility contained within the Scotland Act. Each case was examined on its merits to ensure that the functions are exercised at the appropriate level.

This is a technical and relatively complex issue, and I hope I may explain the background. Under Section 6(1) of the Human Rights Act, it is unlawful for a public authority to act in a way which is incompatible with a convention right. If a person claims that a public authority has acted, or proposes to act, in a way which is made unlawful by Section 6(1), they may bring proceedings against the public authority under the Human Rights Act in the appropriate court or tribunal. A person is permitted to do so only if they are, or would be, a victim of the unlawful act. A “public authority” includes the Members of the Scottish Executive. The Human Rights Act thus represents the principal positive means by which legal protection is given to convention rights in our domestic law and by which individuals may seek redress for the breach of their rights.

The Scotland Act, like the other devolution Acts for Northern Ireland and Wales, provides an additional route for claims to be brought. Convention obligations were written into the devolution Acts during the passage of the legislation through this Parliament. As a result, the Scottish Ministers, as with all devolved Ministers, must at all times act compatibly with convention rights.

Section 100 of the Scotland Act states that proceedings under the Act against incompatible acts cannot be brought by a person unless they fall within the class entitled to bring proceedings under the Human Rights Act. It also limits any damages by reference to the Human Rights Act. The Human Rights Act requires that proceedings must generally be brought within one year from the date of the alleged breach, unless a stricter time limit applies to the proceedings in question. A court or tribunal may permit proceedings beyond

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this time limit if it considers it equitable, having regard to all the circumstances. The Scotland Act, however, makes no such provision. In the case of Somerville, this House ruled that those bringing their claim under the Scotland Act, notwithstanding the fact that the claim is identical in all other respects to a Human Rights Act claim, are not subject to the one-year limitation period under the Act. Such claims are subject only to general prescription and limitation principles under Scots law. In effect, this allows a longer period within which to raise proceedings pursuant to the Scotland Act.

As I have said, Her Majesty’s Government and the Scottish Ministers worked together on this issue. The joint aim was to reach a pragmatic solution that allows an equivalent time limit to be put in place for claims brought under either the Scotland Act or the Human Rights Act. Following discussions between officials, agreement was announced on 19 March by the Secretary of State for Scotland and the First Minister. It was agreed to work together to facilitate a one-year time limit in Scotland by the summer. Her Majesty’s Government will seek the support of this Parliament to bring forward a comprehensive solution extending the same provision to the devolved Administrations in Wales and Northern Ireland, putting all the devolution settlements on a consistent footing and consolidating the changes to the Scotland Act, as soon as legislative time becomes available. The Scottish Parliament approved the order last week. Noble Lords may also wish to note that we sought the views of the Commission on Scottish Devolution—also known as the Calman Commission—which I understand supports this approach.

This order therefore will enable the Scottish Parliament to pass legislation to provide for a time limit within the Scotland Act similar to that in the Human Rights Act, so that certain convention-based claims brought against the Scottish Ministers or a Member of the Scottish Executive, which may be based on the same facts and the same alleged unlawful act, are subject to the same time limit pursued under whichever Act.

As a general rule, prescription and limitation periods in relation to claims brought in civil courts in Scotland are a devolved area of law. However, this matter requires modification of the Scotland Act to introduce the proposed time limit. Paragraph 4(1) of Schedule 4 to the Scotland Act provides that an Act of the Scottish Parliament may not modify, or confer power by subordinate legislation to modify, the Scotland Act itself. There are certain exceptions to this rule, and paragraph 4(2) of Schedule 4 lists those provisions in the Scotland Act which may be modified by the Scottish Parliament.

This order inserts a new paragraph 4A into Schedule 4 to enable the Scottish Parliament to provide for a time limit for claims brought under the Scotland Act alleging breach of convention rights arising from certain acts of the Scottish Ministers or a Member of the Scottish Executive. It provides that any legislation enacted by the Scottish Parliament must provide for proceedings to be brought within a period of one year, beginning with the date on which the act complained of took place, or such longer period as a court may consider

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equitable. This is similar in effect to Section 7(1)(a) and Section 7(5) of the Human Rights Act. The limitation period is without prejudice to any shorter period applicable to the specific procedure and will not apply to claims about the making of legislation. The limitation period will also not apply to bringing of proceedings under the Scotland Act brought by myself as Advocate-General for Scotland or indeed any of the other law officers.

The joint aim of Her Majesty’s Government and the Scottish Ministers is to protect the wider public interest. The measure seeks some consistency in the application of human rights legislation in the UK. This order and the anticipated legislation in the Scottish Parliament will substantially create a harmonised position between the Scotland Act and the Human Rights Act. I commend the order to the House.

The Duke of Montrose: My Lords, I thank the noble and learned Lord for that very full explanation of all the ins and outs of this rather complicated area. It is useful that the House has been brought up to date with the considerable importance of this matter. Perhaps I am revealing my age a bit too well when I say that, as I understand it, the 2007 ruling on the Somerville case was to do with slopping out in Scottish prisons and similar things. In my house, we go back to the time when there was slopping out in the house, let alone in various other places that one had come across. In fact, some of the furniture that is scattered around the place is the old-fashioned commode which belonged to that era.

There is a point for serious consideration. Even though the Minister informed the House that the measure was agreed by Scottish Ministers on 15 March, that is now only eight weeks ago. The measure was introduced to this Parliament with rather less notice. I wonder whether the noble and learned Lord could explain in what way the Government considered it appropriate to put aside the proper Cabinet Office guidelines, which say that legislation should be out for consultation for a 12-week period. Perhaps the noble and learned Lord could say, because when the measure was taken in another place it was still not quite the date when it was due to be approved by the Scottish Parliament. Perhaps that has already taken place, and that would be of interest.

Also, for the record, can the noble and learned Lord say how many claims have occurred so far that extend beyond the one year that would be allowed if this legislation were in place? What difference will this legislation make to those numbers? Can he say whether some appeals may be disallowed? It would be of interest to know what sums the Scottish Government have already paid in the past year and what possible level is estimated that they will be likely to be paying in the future for the want of this legislation, which we hope will be a success.

Lord Wallace of Tankerness: My Lords, I, too, thank the noble and learned Lord the Advocate-General for Scotland for introducing this order and for his explanation of it. I declare an interest as a member of the Commission on Scottish Devolution, the Calman

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Commission, to which the noble and learned Lord referred, and which recommended—I think the request came from the Secretary of State for Scotland—to him that a course of action similar to what we now have before us should be followed.

It is a welcome step to bring into line with human rights legislation the position in Scotland for those who are seeking to raise actions against public authorities—at least on grounds of breaches of human rights; the specific point is that it is not being done under human rights legislation but under the Scotland Act—by making the time limit the same. It is my understanding that the time limit of one year was introduced somewhat late in the day when the Human Rights Act 1998 was going through Parliament. Although the then Scotland Bill was running in parallel, no one seems to have picked up the potential for different time limits to apply. It makes some sense now to bring both into line.

The noble Duke, the Duke of Montrose, raised a question about the usual timescale for issuing Cabinet Office guidelines for legislation not being followed. There is certainly a degree of urgency here, given the sums of money involved. That in itself raises a number of questions. It is my understanding that this order paves the way for the Scottish Parliament to take forward legislation, possibly emergency legislation. Perhaps the Advocate-General can confirm that that is the case.

It is also my understanding—indeed, it was indicated by the Scottish Justice Secretary Kenny MacAskill on 11 March this year—that on the day after the Somerville judgment was issued he wrote to the Lord Chancellor setting out the case for change and seeking urgent action. That was on 25 October 2007, almost 19 months ago. The Lord Chancellor agreed that this was an important issue and that he and his colleagues were engaged constructively on it. However, in December last year the Lord Chancellor told Scottish Ministers that the United Kingdom Government were not persuaded of the case for action. It is very welcome that within less than three months they were persuaded. Perhaps the Advocate-General could shed some light as to why some 14 months went past, with comings and goings that led to the United Kingdom Government not being persuaded, only to change their minds within two or three months. It is a welcome change of mind and there should be some rejoicing over the sinner that repents. Some explanation for the delay would be very welcome.

The Law Society of Scotland has issued some concern about lack of consultation. That is certainly understood, given the pressing need and urgency which has been described in the Scottish Parliament. It is important also to recognise that, if subsequent legislation passes through the Scottish Parliament, this order will affect not only the slopping-out cases to which the noble Duke referred and that all human rights cases will be subject to this time limit. Perhaps the Advocate-General can confirm that the time limit of one year is longer than the six-month time limit required for cases going to the European Court of Human rights in Strasbourg.

Finally, what is the position of those who already have an action in court in respect of an alleged breach which took place more than a year ago? Are actions

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currently in court covered by any legislation which subsequently brings the time limit into line with the two jurisdictions?

The Earl of Mar and Kellie: My Lords, it is always good to get the Scotland Act out and to blow the dust off it, but I do not think that we are blowing hard enough.

I am content with this mild and sensible measure which gives permission to the Scottish Parliament to act on its own behalf. However, I am not content with this parliamentary and statutory procedure. It is unnecessary and fundamentally patronising. After 10 years of successfully reinstated national government, is it not time to complete the Scottish democracy project? Is it really the Government’s intention to keep the people of Scotland in a semi-democracy which is a condition similar to requiring a teenager never to grow up?

Will the noble and learned Lord agree that Scotland in particular and the United Kingdom in general need a constitutional overhaul leading to either a properly constituted federal state, which would please my noble friends, or, even better, to a confederal state, which would please not only those who seek full Scottish democracy, but lead the United Kingdom back to its origins, as achieved in 1603?

6.15 pm

Lord Davidson of Glen Clova: My Lords, I thank all noble Lords who have spoken on this short order. In response to the noble Duke, the Duke of Montrose, perhaps I may note one or two points. In relation to the approach to consultation, it was as a result of an urgency perceived by Scottish Ministers that the sums of money which were potentially at risk were so large that relatively speedy action was required. In particular, they see this as a means whereby contingency sums may be freed up—some £50 million—in order that that might be, in their view, put in other directions.

As regards the number of claims, so far as I am aware from the Scottish Ministers, they assess that there are 28,000 potential claims, and it was for that purpose that the Ministers required to set aside this not insignificant sum. The sums of compensation that have, in fact, been paid to date amount to £7.9 million, according to Scottish Executive figures, with an additional figure in respect of legal expenses that takes the total to £11.3 million.

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