Partnerships (Prosecution) (Scotland) Bill [HL]

Lord Fraser of Carmyllie Excerpts

Tuesday 4th December 2012 Grand Committee

[Lord Fraser of Carmyllie]

My Lords, I, too, warmly welcome the Bill and the undoubted amount of work that has gone into its preparation by the Scottish Law Commission.

I have discussed this matter with one of my distinguished predecessors as Lord Advocate, namely my noble and learned friend Lord Mackay of Clashfern. I am delighted to say that he agrees with me that on no occasion could either of us recall any circumstance in which we had declined to prosecute because of this loophole in the law. My other distinguished predecessor is the noble and learned Lord, Lord Cameron of Lochbroom, but I will leave it to him if he has anything to add. He can speak for himself and indeed has done so.

I cannot recall any such incident but I cannot make that assertion to a point of scientific certainty, because a member of the Crown counsel team might have decided not to prosecute but did not refer the case to a law officer. Frankly, I would be surprised if that had happened. If a point of this significance arose, I think it would have been referred to me as Lord Advocate or as Solicitor-General, or to the noble and learned Lord, Lord Cameron, or to my noble and learned friend Lord Mackay. None of us can recall this issue arising. Nevertheless, it is not a theoretical point. We know, because of the Balmer case, that it is not theoretical and there is a loophole, and I am glad that it has now been closed off. If I had had that arrow in my quiver when I was Lord Advocate, I would have been very pleased although, as I say, I do not recall any circumstance in which I would have used it. With those brief words, I give the Bill a warm welcome.