Scotland Bill

My Lords, as we come to the final group of amendments, we move from finance to law. In the debate that we had in Committee on the roles of the Lord Advocate and the Supreme Court in criminal proceedings, I recognised that we had come a long way from some of the exchanges that took place last summer. Today, we are not considering whether the Supreme Court should have a role in relation to certain constitutional issues arising in Scottish criminal appeals, as it is agreed that this is, and ought to remain, within the current constitutional framework. The issues that remain to be discussed concern the nature and extent of the appeal rights to the Supreme Court in Scottish criminal proceedings and how those rights can operate effectively. The amendments that I tabled in Committee took account of the views expressed by a number of bodies and people on these issues, including the expert group that I set up under the chairmanship of Sir David Edward, the review group led by the noble and learned Lord, Lord McCluskey, and indeed the representations made by the Lord Justice General and Lord President of the Court of Session, Lord Hamilton. In Committee I agreed to consider a number of issues and said that, if persuaded, I would be willing to table amendments on Report. The amendments that I have tabled reflect some of the points made in this House in Committee and the agreement reached between the Government and the Scottish Government to ensure that a legislative consent Motion in support of the Bill is tabled in the Scottish Parliament. There has been much discussion about the questions that should constitute a compatibility issue and those that should remain devolution issues. We have been seeking to ensure that the new appeal right is workable and that it does not result in argument about when the appeal right should and should not apply. Account also has to be taken of the important constitutional issues that can arise when considering the legislative competence of the Scottish Parliament and the acts of Scottish Ministers. Amendment 35 amends the definition of a compatibility issue to include questions raised in criminal proceedings as the compatibility of Acts of the Scottish Parliament with the Convention on Human Rights or European Union law. Other questions as to whether an Act of the Scottish Parliament is outwith the competence of the Scottish Parliament—for example, whether it is a reserved as opposed to a devolved matter—will remain devolution issues, even if they are raised in criminal proceedings. The effect of that will be that there will be a single route of appeal for all convention and EU law issues raised in criminal proceedings, regardless of whether the issue relates to an act of a public authority or the compatibility of an Act of the Scottish Parliament. Amendment 39 would remove from the definition of a devolution issue any question raised in criminal proceedings relating to compatibility with the convention or EU law. As I said, this will ensure that questions about the compatibility of ASPs with the convention and EU law that are raised in criminal proceedings can be raised only as compatibility issues. Questions as to the compatibility of acts of the Scottish Ministers raised in criminal proceedings will be raised as compatibility issues, not devolution issues, by framing these as questions of whether the Scottish Ministers have acted, or propose to act in a way which is unlawful under Section 6(1) of the Human Rights Act 1998. Amendment 33 amends the definition of ““compatibility issue”” to make clear that such an issue can arise only in criminal proceedings—in other words, if there is an issue about an Act of the Scottish Parliament and its relationship to EU law that is not in the context of criminal proceedings, the normal devolution issues will apply. Amendment 37 provides a procedure for the reference of compatibility issues. It allows the lower courts to refer a compatibility issue to the High Court before trial proceedings are concluded. The decision of the High Court on the compatibility issue can then be appealed to the Supreme Court. The amendment also allows the Advocate-General or the Lord Advocate to require the lower court to refer a compatibility issue to the High Court, acting as an appeal court, before trial proceedings are concluded. Where this power is exercised, the High Court can refer the issue to the Supreme Court or determine the issue itself. If the High Court determines the compatibility issue itself, this again can be appealed to the Supreme Court. Where a compatibility issue arises in the High Court sitting as an appeal court, the amendment allows the High Court itself to refer the issue to the Supreme Court rather than determining the issue. However, if the compatibility issue is being considered by the High Court on a reference from the lower court of its own volition, the High Court must determine the issue and cannot refer it to the Supreme Court. The powers of the Supreme Court in determining a compatibility issue arising out of a reference will be the same as on an appeal of a compatibility issue, so the Supreme Court will determine the compatibility issue and remit proceedings to the High Court. We do not expect these reference powers to be used frequently but consider that there may be cases when these powers are beneficial and enable important issues to be dealt with quickly. It will still be possible for both the lower court and the High Court to hear cases expeditiously and there may be cases where this is more appropriate than the making of a reference. I turn to the amendments tabled by the noble and learned Lord, Lord McCluskey, and we acknowledge what he said earlier in our proceedings. I am grateful to him for the way in which he has engaged with officials on this issue. The amendments raise the question of whether the Lord Advocate and Advocate-General should be able to refer to a compatibility issue to the Supreme Court without the permission of the High Court. It is an issue that I will consider further. In particular, I wish to consider what the role of the High Court should be in a reference of a compatibility issue by the Law Officers to the Supreme Court. It is one that I want to discuss with the Lord Advocate. It may, therefore, be necessary to table further amendments at Third Reading to provide for such a further power of reference for the Lord Advocate and Advocate-General. Perhaps the most controversial issue in this matter is the issue of certification. I have not been persuaded that it is necessary to provide a compatibility issue that can be appealed to the Supreme Court only if the High Court has certified that it raises a point of law of general public importance. However, as I said in Committee, I consider that the arguments in respect of this are finely balanced and I have considered very carefully the views expressed by the Lord Justice General and the review group of the noble and learned Lord, Lord McCluskey. The amendments that I have tabled do not seek to introduce a certification requirement. However Amendment 52 makes provision for there to be a review arranged by the Secretary of State of the new compatibility issue procedure and of the introduction of time limits for devolution issue appeals to the Supreme Court in Scottish criminal proceedings. The review is to be carried out as soon as practicable after the provisions have been in force for three years. I consider three years to be an appropriate time to enable us to asses how the new procedure is working. Before the review takes place, there must be time for the new compatibility procedure to bed in, and having the review before a three-year period may not allow this to happen. Even allowing for the limited number of cases where permission to appeal a devolution or compatibility issue is likely to be sought, there should be sufficient evidence available after the provisions have been in force for three years for a review to take place. The review can be carried out earlier if the Secretary of State considers this appropriate—for example, if circumstances arise that suggest the need for an earlier review. The review will be wide-ranging. It will look at all aspects of the provisions and consider whether changes should be made. In particular, it will consider whether compatibility issues should be appealable to the Supreme Court only if the High Court certifies that the issue raises a point of law of general public importance. The review will not be limited to considering whether certification, in the form used in England and Wales, should be introduced: it will be able to consider alternative forms of certification. The United Kingdom and Scottish Governments have agreed that the review will be chaired by the Lord Justice General. It will seek a wide range of views, including those of the Lord Advocate, Scottish Ministers, the Scottish courts, the Supreme Court and representative bodies with an interest in the criminal justice system. The Lord Justice General is the appropriate person to chair the review as he—or she; a new Lord Justice General will be in post by then—will have the appropriate overview of criminal procedure. It is not necessary for the Bill to provide that the review should be chaired by the Lord Justice General. I hope that my statement to the House to that effect should be sufficient. I will address two further issues. There was discussion about the role of the Supreme Court in relation to compatibility issues. This was considered by the review group of the noble and learned Lord, Lord McCluskey, and by the Scotland Bill Committee. In Committee in this House I tabled amendments to provide that when the Supreme Court considers a compatibility issue, its role is only to determine that issue and then remit the case back to the High Court for disposal. The Supreme Court has the power under Section 40 of the Constitutional Reform Act 2005 to consider any question that must be determined for the purpose of doing justice in an appeal to it, and can make rules governing its practice and procedure. New Section 288AA of the Criminal Procedure (Scotland) Act 1995, inserted by Clause 38, makes it clear that the powers of the Supreme Court in relation to compatibility issues are exercisable only for the purpose of determining such issues. The general powers of the Supreme Court, as set out in provisions such as Sections 40 and 45 of the Constitutional Reform Act 2005, will be read subject to the specific provisions in new Section 288AA that limit the court's powers in relation to compatibility issues. For the purpose of determining compatibility issues, the Supreme Court will have the power to make any change in the formulation of the compatibility issue that it considers necessary in the interests of justice. New Section 288AA also expressly provides that when the court has determined the compatibility issue, it must remit the proceedings to the High Court. Rule 29 of the Supreme Court Rules 2009 makes provision on Supreme Court powers in relation to appeals. This was discussed with the chief executive of the UK Supreme Court. She confirmed that Rule 29 would be read in the light of any relevant changes to the primary legislation agreed as part of the Bill. There are currently no time limits for appealing devolution issues in criminal proceedings to the Supreme Court. It is important that there is finality and certainty, not least for victims, in relation to criminal proceedings. Amendment 51 provides for time limits for appeals to the Supreme Court in relation to devolution issues that arise in criminal proceedings. The limits are the same as those that will apply in relation to compatibility issue appeals to the court. An application will have to be made to the High Court for permission to appeal within 28 days of determination of the appeal, or such longer period as the court considers equitable. If the High Court refuses permission, an application to the Supreme Court must be made within 28 days of the High Court's refusal of permission. Again, the time limit can be extended if the court considers this equitable. This will strike an appropriate balance and reflect the need for finality in criminal proceedings, while taking account of circumstances when it might be appropriate for the time limit for appeals to be extended. Finally, Amendment 38 amends Section 102 of the 1998 Act. It provides that if the Supreme Court, in considering a compatibility issue, decides that a provision of legislation is outwith legislative competence, it will be the High Court rather than the Supreme Court that will decide what retrospective or other orders might be made under Section 102 of the Scotland Act 1998. If the Supreme Court, in determining a compatibility issue, decides that an Act of the Scottish Parliament is outwith competence, the ASP will still not be law. Amendment 38 is about dealing with the consequences of the ASP not being law, and reflects the respective roles of the Supreme Court and the High Court. Amendments 41 and 44 are technical drafting amendments. Amendments 53 and 54 are consequential amendments as a result of the provisions on the role of the Supreme Court in Scottish criminal proceedings being moved from Part 2 of the Bill to Part 4. It is an important issue and I appreciate these amendments are technical. They raise a number of important issues, too. After much dialogue and discussion I believe that we have struck the right balance and I beg to move.