Advocate General Lord Wallace of Tankerness QC is to consult the legal community on a technical issue concerning the procedure whereby acts of the Lord Advocate, carried out in her role as Scotland’s prosecutor, may be challenged under the Scotland Act 1998.
Devolution legislation provides that members of the Scottish Executive, including the Lord Advocate, have no power to act incompatibly with Convention rights or with EU law. The Scotland Act provides for a procedure to challenge any act alleged to be in breach of such provision. This is different from other parts of the United Kingdom where the actions of prosecuting authorities are, for instance, covered by the Human Rights Act in relation to alleged breaches of Convention rights. In question is whether the procedure under the Scotland Act causes problems for the operation of the courts or the system of criminal justice in Scotland.
The Advocate General has established an Expert Group to advise UK Ministers on this matter and he is also seeking views of other interested parties by October 22nd through an informal consultation into “Devolution issues and the acts of the Lord Advocate”.
The members of the Advocate General’s Expert Group are:
- Sir David Edward KCMG, QC (Chairman)
- The Rt Hon Lord Boyd of Duncansby QC
- Professor Tom Mullen (Glasgow University)
- Frances McMenamin QC
- Paul McBride QC
The short consultation process comes as a result of the Commission on Scottish Devolution (Calman Commission) which considered the issue that acts of the Lord Advocate in her capacity as head of the system of prosecutions can give rise to challenges (“devolution issues”) under the Scotland Act.
The issues were mainly raised in a submission from the Judiciary in the Court of Session during the Commission’s round of evidence gathering.
The Commission did not make any recommendation on the matter, given its remit, but recognised this gives rise to important issues affecting prosecutions in Scotland.
In order to inform the expert group’s deliberations in this highly specialised area, the Advocate General also wishes to conduct a short, informal, focused consultation with representative bodies and other interested parties.
A short paper on the issue on the Devolution issues and the acts of the Lord Advocate is available on the Advocate General’s website.
The consultation process will close on 22 October.