The Advocate General, Lord Wallace QC, has agreed with the recommendation of the Scottish Parliament’s Scotland Bill Committee to conduct further work on the proposals to remove the prosecution actions of the Lord Advocate from the devolution issues procedure under the Scotland Act.
Lord Wallace welcomed the committee’s support in principle for the changes and is now seeking views on the draft clauses which have already been discussed with the Scottish government and Holyrood’s Scotland Bill Committee. The aim is to have an amendment that can be tabled during the House of Lords stages of the Scotland Bill later this year.
The current proposals from the Advocate General accept the recommendations of the independent expert group that was established to look into this matter.
The policy position of the Advocate General as set out in the draft clauses would mean that:
- Acts of the Lord Advocate in relation to a prosecution would be removed from the devolution issues procedure under the Scotland Act
- Scots would retain a right of appeal to the UK Supreme Court in relation to ECHR and EU obligations that arise in criminal cases
- Section 102 of the Scotland Act is amended to provide a court with a discretion to limit the retrospective effect of its judgments in a case where it determines that acts of the Scottish Ministers are outwith the powers conferred by the Scotland Act
The problem that has arisen since devolution is that because the Lord Advocate is ‘a Scottish Minister’ under the Scotland Act 1998, all her actions, including her prosecution actions, must be compatible with ECHR. If the Lord Advocate is ruled to have acted in contravention of the Scotland Act, as in the recent Cadder case, then the consequences for the criminal justice system in Scotland can be severe and disruptive.
Lord Wallace said:
“This problem was first raised by the Scottish judges to the Calman Commission and there is general consensus that the prosecution actions of the Lord Advocate should not be covered by the Scotland Act. I don’t want to see the situation where a legal ruling on a single case can have a sweeping and disruptive effect on our entire criminal justice system. The Scotland Bill currently going through the UK Parliament provides us with the opportunity to address this problem.
“It is true that there is disagreement about other aspects of this issue, in particular the respective roles of the High Court in Edinburgh and Supreme Court in London. I am pleased that the Scottish Parliament Committee on the Scotland Bill supported our plan to retain a right of appeal to the UK Supreme Court in certain instances.
“In our dialogue with the Scottish government on these clauses we have been unable to reach an agreement. I hope that the consultation may help us to find a way forward because it would unfortunate if we were not able to make the most of the opportunity afforded to us by the Scotland Bill presently being considered at Westminster.”
The draft clauses will be put on the website of the Office of the Advocate General today.