Scotland Bill

Lord Boyd of Duncansby Excerpts

Thursday 2nd February 2012 Lords Chamber

[The Earl of Mar and Kellie]

My Lords, one of the curiosities of the current rail franchising process is that while the British Government and, presumably, the Scottish Government cannot offer to run the railways directly, there is no opposition to foreign national Governments—through, for example, Deutsche Bahn or SNCF—running franchises in the United Kingdom.

[Lord Boyd of Duncansby]

My Lords, I am grateful to my noble friend for tabling the amendment, which was debated in the other place. It seeks to rectify what appears to be an omission from the Scotland Act 1998 and subsequently the Railways Act 2005, which devolved significant powers over the ScotRail franchise, including its funding and licensing as well as responsibility for new rail lines for the network, yet neglected to devolve the power to determine the model of that franchise. Of course, it would not be appropriate to devolve responsibility for cross-border services, but that is not what the amendment seeks to address. It is clear that the amendment relates to services that begin and end in Scotland.

When this matter was debated in another place, as my noble friend indicated, we seemed to get side-tracked—if that is not an inappropriate way of putting it—down a spectre of renationalisation, which was not the purpose of the amendment. The Parliamentary Under-Secretary failed to address the central issue that the amendment poses regarding whether it is consistent with the spirit of the devolution settlement that the power to determine the nature of a discrete Scottish franchise, in relation to which the Scottish Government already have considerable responsibility, should be reserved.

I ask the noble and learned Lord the Minister to say what the position is in Wales and, more fundamentally, why the Government believe it is necessary and proper to retain powers to determine the franchise model of a self-contained Scottish rail service where the franchise is granted by the Scottish Government.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive—I think that Mr Henry McLeish took a role in that—and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers’ Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways—my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa—so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

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[Lord Boyd of Duncansby]

My Lords, may I ask a question? They are on the Marshalled List in this group; that is the point. We are all here ready to debate these issues. It would be very unfortunate if we now moved on to other business and came back to this issue; these all form part of a group.

[Lord Cameron of Lochbroom]

I am in some difficulty because in listening to what the noble and learned Lord has already said about Clause 17 stand part, he justified his arguments by reference to later amendments in his name—namely, Amendments 71 and 72. It seems to me perfectly plain that these are before the Committee for discussion even though we may for the moment have swept Clause 17 out of the way—firmly batted it out of court. I ask your Lordships to reconsider the matter which has already been introduced because it would cause intense confusion if we passed over what the noble and learned Lord has already said in support of the amendments which will come in place of the displaced section at a later date.

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[Lord McCluskey]

My Lords, I am perfectly happy to do that. Amendment 71A, which stands in my name, refers to line 11 of government Amendment 71 and proposes to insert the words,

“in the course of criminal proceedings”.

I want to emphasise that we are generally happy with the approach of Amendment 71: at least I am because I am happy that it deals with the Criminal Procedure (Scotland) Act 1995 rather than the 1998 Act—a point which I made earlier. However, the heading of the new clause, which is in bold on the Marshalled List, states:

“Convention rights and EU law: role of Advocate General in relation to criminal proceedings”.

First, I accept that we should deal with EU law as well as ECHR law, although our report did not find it necessary to go into that matter at all. This relates to criminal proceedings. The whole point is that Amendment 71 relates to the Criminal Procedure (Scotland) Act 1995, and we are making provisions in subsection (3) on:

“Right of Advocate General to take part in proceedings”.

I believe that that should read, “take part in criminal proceedings”, for a reason that I shall come to shortly. The provision states, in terms, that:

“The Advocate General … may take part as a party in criminal proceedings so far as they relate to a compatibility issue”.

The compatibility issue is defined here for the purposes of all the proposed new sections, including those that I am proposing.

Subsection (2) of proposed new Section 288ZA states:

“In this section ‘compatibility issue’ means a question whether a public authority has acted (or proposes to act)”

in the way specified in proposed new paragraphs (a) and (b). Again, we ought, for clarity to insert the words, “in the course of criminal proceedings”. They merely add something that is perfectly obvious, but they have a bearing on the important issue as to whether or not questions arising in criminal proceedings might be treated as vires issues in the way mentioned by the noble and learned Lord when he was speaking a moment ago.

Therefore, my next amendment proposes to insert after “whether”:

“an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is outside the legislative competence of the Parliament as being incompatible”.

This is an important issue because the Advocate-General has very properly decided that there should be an amendment to paragraph 1 of Schedule 6 to the 1998 Act. That change appears in the new clause proposed in Amendment 72. Subsection (3) states:

“In paragraph 1 of Schedule 6 …after sub-paragraph (f) insert—‘But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act”.

When one looks at that provision in subsection (2) of the new section proposed in Amendment 71, we find that a compatibility issue includes,

“whether a public authority has acted (or proposes to act) … in a way which is made unlawful by section 6(1)”.

I may be wrong about this, and I hope to hear the noble and learned Lord’s reply, but if a Member of the Scottish Parliament—particularly a Member of the Government—proposes a Bill in the Scottish Parliament that will breach a convention right, as specified in Section 6(1) of the Human Rights Act 1998, that is unlawful. Therefore, under the proposed new clause in Amendment 72, from which I quoted a moment ago, a question arising in criminal proceedings is not a devolution issue, if it is a compatibility issue within that meaning. The result is, I think—although I may be wrong, because this is difficult to follow—that if, in the course of a criminal trial, assuming that the noble and learned Lord’s amendments on these matters are accepted, a person states, “The Act under which I have prosecuted or which has a bearing upon the prosecution is beyond the competence of the Parliament”, it will instantly become a compatibility issue that is not a devolution issue. Therefore, the alternative route of using the vires provisions under Schedule 6, to which the Advocate-General refers, will not be available to anyone. In other words, there is only one route to take, which is what I want to happen.

On 17 January, the Advocate-General said to me in a letter, and repeated today:

“I am not minded to accept the Lord Advocate’s suggestion”—

a suggestion made by the Lord Advocate before the committee at which I spoke—

“that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with ECHR or EU law. The suggestion would mean that if someone wishes to argue that an ASP is incompatible with the ECHR and that it also relates to reserved matters they would need to use the new appeal route in relation to the ECHR issue as well as the existing devolution issues appeal route”.

I think that his amendments knocked out the devolution issue and have given us what we want, but I would be interested to hear his view on that and whether there has been some confusion on the matter.

The other amendment which I should mention in this context bears on proposed new Section 288ZA in Amendment 71, where I propose to add in subsection (2),

“references to the course of criminal proceedings are to the period beginning with the detention or arrest of a person for an offence and ending with the pronouncing of the final interlocutor”.

The reason for that highly technical amendment is that it is possible that, before a person is detained or arrested, there might be by a public authority—whether the police or the BBC, for example—an invasion of his human right to a fair trial by saying things about the accused even before he is detained. We may need to look at that separately, but the amendment draws attention to the fact that there ought to be a definition as to when criminal proceedings begin in the Act, so as to leave it in no doubt. There have been difficult questions in past cases about when a person is charged, when he is detained, et cetera. Those words themselves are not crystal clear, but I want to make it crystal clear when criminal proceedings begin and when, for the purposes of compatibility issues, they end. That matter is covered by my Amendments 71A to 71C, which draw attention to what I think are problems arising from the framing of Amendment 71, which proposes the new clause.

[Lord Boyd of Duncansby]

I must say that I am somewhat confused as to where we are on all this and whether, for example, I have now to address the issue of certification. I am not entirely clear whether the noble and learned Lord, Lord McCluskey, has yet to address that issue.

However, first, as the noble and learned Lord observed, I was a member of the Advocate-General’s expert group looking at the issue of the jurisdiction of the Supreme Court. We welcome the progress that has been made by the noble and learned Lord and reflected in the government amendments. The expert group recommended that the jurisdiction of the Supreme Court should continue and should be focused on the role of the prosecutor, but that convention compliance in criminal should be outwith the jurisdiction or ambit of Section 57(2).

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[Lord McCluskey]

I did not speak to that amendment. I agree that it may not be entirely necessary. However, as the noble and learned Lord knows, many a time have we put something in statute to make a clear point. Because there has been debate, including among lawyers, about whether the High Court of Justiciary is the final court except in relation to compatibility issues, there is something to be said for putting this in the Bill. I felt that that would be a way to do it. That was why I tabled the amendment. The intention was to underline a point that is implicit elsewhere in the Act and, as the noble and learned Lord said, is stated expressly in other Acts.

[Lord Boyd of Duncansby]

I am grateful to the noble and learned Lord for that. On the broad issue of references to the High Court and Supreme Court by the Lord Advocate and Advocate-General for Scotland, I will reserve my position and consider the matter in more detail. When I was Lord Advocate, I always thought that the opportunity for doing was important. I believe that I did it once. I also take the point made by the noble and learned Lord the Advocate-General that there may be issues around whether it would be better if any of the parties could ask the court to do this. I will consider that before Report. I think that I have dealt with most of the issues. Given the wide-ranging nature of the amendments in this group, I may have missed something. However, I hope I picked up on all the necessary points.

[Baroness Rawlings]

My Lords, perhaps I may tell all noble Lords that they should feel free to comment on any amendments on the Marshalled List that relate to Clause 17.

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[Lord Boyd of Duncansby]

My Lords, I have very little else to add to what has been a useful debate. However, I hope that next time we come to this we are able to group the amendments in such a way that we can have a more structured debate, because it has not been particularly easy to follow. The noble and learned Lord has been up and down on his feet—I do not blame him for that in any way, but the way that this has progressed has been unfortunate. Perhaps next time we can look more clearly at grouping the amendments in a more coherent manner.

[Lord Maclennan of Rogart]

It may be regarded as something of an impertinence for one who is not a Scots lawyer to intervene in such a debate and I therefore propose to confine my remarks. I hope that when we do come back to this, there will be a jury as well as judges sitting, and that we may hear the voice of the man in the street on this matter. Speaking with the view of the man in the street, I am bound to say that I find the Government’s position on this, and the views expressed by the noble and learned Lords, Lord Cullen and Lord Cameron, persuasive. It seems to me that the prime consideration is not whether or not the trial can be completed quickly, but whether or not justice is done. Those who are charged with an offence should have the right of appeal considered, unrelated to whether or not the issue is of public importance. It is of direct importance to the individuals involved in the trial. I may be completely off beam, and I recognise the risk of intervening in such a debate, but having listened to most of the arguments, I found them compelling, particularly on the side of the noble and learned Lord, Lord Cullen.

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[Lord Wallace of Tankerness]

Indeed, I can confirm that the Lord Advocate has referred cases directly to the Supreme Court; the so-called “sons of Cadder” cases were on references by the Lord Advocate to the Supreme Court within the last 12 months. So it clearly has been done. Those were cases clearly where there was a wish to get clarity in some of the implications of the original Cadder judgment. So there are certainly good arguments as to why that should be there, and ones that I am certainly prepared to listen to further.

[Lord Boyd of Duncansby]

I referred a case about the independence of justices of the peace, for the very reason to which the noble and learned Lord, Lord McCluskey, referred—because of the importance in getting clarity at an early stage so that the system as a whole did not seize up.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord, Lord Boyd, for that because there are arguments there and I will give further reflection to them.

A good number of issues have been aired on certification. I am grateful to the noble and learned Lords, Lord Cullen, Lord Cameron of Lochbroom and Lord Boyd of Duncansby, who indicated on certification that although there have been issues against it, in fact the case that the Government have sought to make against certification can be justified on a number of grounds. It is right, as a number of your Lordships have indicated, that we are not comparing like with like. As I indicated in my opening remarks, in England and Wales the whole criminal justice system of substantive criminal law and criminal procedure is the potential subject matter of appeals to the Supreme Court, whereas here we are dealing with what are essentially constitutional issues that arise in the context of a criminal case—namely, convention compliance or European Union laws.

Also, as I indicated before, the original justification for certification was very much administrative. It was an Administration of Justice Act in which it was introduced, to ensure that there was not a great flood of cases. I believe that it was brought in not for any reason of jurisprudence—as the quotes from the then Lord Chancellor, Viscount Kilmuir, suggest—but as an administrative break. Again, not least because of the representations which we have received from the Lord Justice General, we will treat these matters very sensitively and seriously, giving proper weight to the arguments that have been advanced again. It would be fair to say that the arguments advanced in the course of your Lordships’ debate this evening have not really prompted me to change my mind on this, but no doubt these matters will be returned to.

I am grateful to the noble and learned Lord, Lord McCluskey, for giving us a focus for some of the debates which we have had, and I very much hope that on Report—

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[Lord Sewel]

My Lords, my mind goes back to consideration of the Scotland Bill in 1998. Some things are the same and some things change. What is the same is that now we are reduced to a relatively small House; what is different is that in 1998 our deliberations were at 2 am—when we used to carry on till that time—and now it is 6.45 pm. Nevertheless, as they say, I am sure that we will be able to make some progress.

The amendment deals with the appointment of what is called the BBC Trust member for Scotland. In olden days it used to be referred to as the “Scottish governor” of the BBC. At the moment the Bill says:

“A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment”,

and then goes on to explain. My amendment would take out “agreement” and put in “consultation”.

That is partly because of something that happened way back in 1974, when local government in Scotland was reorganised. I remember going to a conference of the good and the great, where the whole discussion was about the relationship between the two tiers of local government in Scotland, the regions and the districts. I remember a very distinguished civil servant at the time saying, “Given good will, the relationship between the two tiers of local government would work very well indeed”, and a grizzled chief town clerk—those were the days when we had town clerks rather than chief executives—saying that in his experience the last thing that you could count on in the relationships between local authorities was the existence of good will.

I am not daring to say that that typifies the relationship between the Scottish Parliament and the Parliament of the United Kingdom, or between Scottish Ministers and UK Ministers, but having an appointment that depends upon the agreement of two Ministers from different Parliaments and maybe of different political hues, as sometimes happens in this House, creates at least the opportunity—I put it no stronger than that—for mischief-making. In other words, it is possible to generate a major row or a clash over something relatively minor, so that what perhaps starts off as an irritant becomes a major issue of principle. Basically, let us avoid that; let us avoid creating a structure that offers that possibility.

By all means let us have consultation. My amendment would mean that the Secretary of State had consultation with Scottish Ministers. To be honest, I would prefer the Scottish Minister to have the decision rather than the Secretary of State, if we got away from the business of agreement. My first position is the Secretary of State and my second position is Scottish Ministers. I just want to avoid the opportunity—the invitation, almost—to create a fuss over something where it should not exist.

[Lord Boyd of Duncansby]

My Lords, there is an important point in what my noble friend says. The Calman commission recommendation was that:

“The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process”.

There is no suggestion there that it would be by anyone other than the Scottish Ministers. Perhaps in addressing my noble friend’s point, the Minister could also address the issue of why there has been a difference of approach in the Bill from that of the Calman commission’s report.

[Baroness Rawlings]

My Lords, I am most grateful to the noble Lord, Lord Sewel, for putting down his amendment as it gives me the opportunity to clarify Her Majesty’s Government’s view on this delicate point.

Clause 20 will make certain that the Secretary of State has to seek the agreement of Scottish Government Ministers in the process of appointing the BBC Trust member for Scotland. Currently, the Scottish Government are involved in the appointment process on an informal basis. The clause will formalise the involvement of Scottish Ministers in the appointment process and gives them the legislative basis to undertake their responsibilities in relation to the appointment process.

Under the terms of the BBC charter, the Trust member for Scotland must be qualified by virtue of his knowledge of the culture, characteristics and affairs of the people in Scotland and his close touch with the opinion of that nation. Therefore, we feel it is preferable that Scottish Ministers should have a significant role in agreeing the appointment. In answer to the noble Lord, it is highly unlikely that the situation would arise in which they would fundamentally disagree over the appointment of a candidate. If Scottish Ministers do not give their agreement to the proposed DCMS appointment of the BBC Trust member for Scotland, they would need to provide justification for that. Both sets of Ministers have the same interest in not wanting to leave the seat empty. The opportunity is primary for a member of a UK body—that is, the BBC Trust. Furthermore, broadcasting remains a reserved matter, something that the Calman report was very clear should remain the case, and we are following that principle. On this basis, the UK Government believe it is important to retain the ultimate responsibility for the appointment.

This amendment would place a duty on the Secretary of State only to consult Scottish Ministers in appointing the BBC Trust member for Scotland, rather than seeking their agreement to the appointment. It is our view that this does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment.