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Please note that this consultation is now closed. Responses to the consultation and the report of the Expert Group can be found here.
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The Advocate General welcomes the support in principle of the Scottish Parliament’s Scotland Bill Committee for the proposal to remove acts of the Lord Advocate in relation to prosecutions that are alleged to be incompatible with Convention rights and Community law from the devolution issues procedure under the Scotland Act, and its recognition of the role of the Supreme Court. In line with its recommendations, he has agreed to conduct further work on the proposals. A copy of the Scotland Bill Committee report can be obtained here (see in particular paragraphs 200 – 205).
Accordingly, the Advocate General is now seeking comments on draft clauses for inclusion in the Scotland Bill currently before Parliament that have been prepared to implement the conclusions of the Expert Group previously appointed by him to consider this issue. These draft clauses have already been discussed with the Scottish Government and the Scotland Bill Committee.
A copy of the Expert Group’s report can be found here, and the Advocate General’s previous statement in relation to the report here. A copy of the draft clauses can be found here.
In brief, the draft clauses would mean that:
• Acts, or failures to act, by the Lord Advocate in the course of criminal proceedings that were alleged to be incompatible with Convention rights or Community law would be removed from the devolution issues procedure under the Scotland Act.
• But there would be a right of appeal to the UK Supreme Court in relation to issues of compatibility with Convention rights and EU law that arise in criminal cases.
• Section 102 of the Scotland Act is amended to provide that it applies equally to acts of the Scottish Ministers in addition to Acts of the Scottish Parliament or subordinate legislation that are not within legislative competence for reasons set out in the Advocate General’s previous statement.
A full discussion of the background and the issues arising in relation to the current procedure can be found in the Expert Group’s report.
The Advocate General would particularly welcome comments on the following issues that have arisen in remarks made by those with whom the clauses have already been shared:
• Should there be a requirement that the High Court (sitting as the Court of Criminal Appeal) certify that a case raises a point of law of general public importance, and grants leave to appeal, before appeal is allowed to the Supreme Court? And in the event of certification but a refusal of leave, should it be possible to seek leave to appeal from the Supreme Court?
• Should provision be made for “leapfrog” appeals – that is to say, should provision be made to allow appeal to be taken to the Supreme Court direct from a trial court without the involvement of the Court of Criminal Appeal in cases of the kind covered by the new provision? If so, then:
o What conditions (if any) should be satisfied before such an appeal is taken; and
o Which parties should be permitted to take such an appeal – should it be restricted to the prosecution?
• Should the Lord Advocate’s Reference procedure currently contained in the Criminal Procedure (Scotland) Act 1995 be extended to allow for references to the Supreme Court in cases of the kind covered by the new provisions (i.e. those dealing with issues of compatibility with Convention Rights or Community law)?
However, comments need not be restricted to these issues, and comment on any aspect of the draft clauses is welcome.
If an amendment to the Scotland Bill to implement these proposals is brought forward, it will most likely be tabled during the House of Lords stages of the Scotland Bill later this year.
Comments should be sent by email to osagsecretariat@advocategeneral.gsi.gov.uk or by post to
The Office of the Solicitor to the Advocate General
Victoria Quay
Leith
EDINBURGH EH6 6QQ
Comments must be received by no later than Friday 13 May 2011.