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The Advocate General has now launched a consultation on the proposed clauses to implement the Expert Group's report which can be found here.
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On 24 September 2010, the Advocate General announced an informal consultation concerning the way in which acts of the Lord Advocate in her capacity as head of the system of prosecutions might give rise to devolution issues under the Scotland Act. He also appointed an Expert Group to consider the issue. Further details can be found here:
The Advocate General has now considered the report of the Expert Group and the various responses to the consultation, copies of which can be found here. He would like to thank both the members of the Expert Group and respondents to the consultation for the time and effort that they put into considering this issue. He has concluded that implementation of the report’s recommendations represents a positive and sensible reform of the current position in the light of the experience of devolution issues over the last decade. Accordingly, a government amendment to the Scotland Bill that is currently before Parliament will be brought forward during its passage that will implement those recommendations and will, in particular:
• Remove acts of the Lord Advocate in her capacity as head of criminal prosecutions and investigation of deaths in Scotland that are incompatible with any rights conferred by the European Convention on Human Rights that are given effect to by the Human Rights Act 1998 (“Convention rights”) or Community law from the ambit of section 57(2) of the Scotland Act; and
• Create a statutory right of appeal from the High Court of Justiciary sitting as a criminal appeal court to the Supreme Court in relation to matters where it is alleged that the Lord Advocate has acted incompatibly with any such Convention right or Community law to replace the existing devolution issue procedure that currently applies in such cases. The jurisdiction of the Supreme Court should be maintained both for reasons of constitutional propriety and, more importantly, to ensure that fundamental rights enshrined in international obligations are secured in a consistent manner for all those who claim their protection in the United Kingdom.
The amendment recognises the unique position of the Lord Advocate among Scottish Ministers (which is already recognised in the Scotland Act) as being both a Scottish Minister and an independent head of the system of criminal prosecutions and investigation of deaths in Scotland. The Lord Advocate will become subject to a regime that is the same as all other prosecutors in the United Kingdom in relation to the latter role.
Thus this amendment will not relieve the Lord Advocate from her obligations to comply with Convention rights or with Community law when acting in her capacity as head of criminal prosecutions and investigation of deaths in Scotland. It will continue to be unlawful for the Lord Advocate to act incompatibly with a Convention right or with Community law. Nor do they affect challenges to the legislative competence of an Act of the Scottish Parliament that may arise during criminal proceedings. Those issues would remain as devolution issues and be dealt with in accordance with Schedule 6 of the Scotland Act.
One matter not dealt with by the Group, but which has been referred to in discussions about this issue, was whether section 102 of the Scotland Act should be amended instead of, or in addition to, the proposals set out above. At present section 102 enables a court to remove or limit the retrospective effect of its decision or to suspend the effect of its decision where it decides that:
• An Act of the Scottish Parliament, or any of its provisions, is not within legislative competence; or
• A Scottish Minister does not have the power to make, confirm or approve subordinate legislation.
The power does not extend to the situation where the court has decided that an act of a Scottish Minister (other than the making of subordinate legislation) is outside devolved competence. So for example, if a court concluded that a provision of an Act of the Scottish Parliament was outside legislative competence for any reason, it could limit the retrospective effect of its decision to make it clear that business transactions entered into in good faith in reliance on the provision before the date of the judgment were still binding and enforceable. On the other hand, if a court concluded than an extra-statutory compensation scheme operated by Scottish Ministers was outwith their powers under the Scotland Act, the court could not limit the retrospective effect of its decision and Scottish Ministers may be required to seek repayment of compensation already paid out causing considerable hardship and difficulty.
The Advocate General has concluded that there is no justification for this distinction, and accordingly a government amendment will be brought forward to rectify the position so that section 102 applies equally to acts of the Scottish Ministers at the same time as the amendment to section 57 discussed above. This amendment will not be limited to the Lord Advocate, but rather will extend to an act of any of the Scottish Ministers. Similarly, while it will apply to acts that are outwith the powers of the Scottish Ministers by reason of a breach of Convention rights or Community law, it will not be limited to those breaches and will extend to any act that is outside devolved competence (as defined in section 54(3) of the Scotland Act).