Scotland Act 2012 (Consequential Provisions) Order 2013

Lord McAvoy Excerpts

Thursday 7th February 2013 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the Scotland Act 2012 makes provision for a new route of appeal to the Supreme Court for compatibility issues. As noble Lords may recall from our debates on the Scotland Bill, compatibility issues are questions raised in Scottish criminal proceedings about European Convention on Human Rights issues and European Union law issues. These would previously have been devolution issues. The Scotland Act 2012 also makes provision for compatibility issues to be referred to the Supreme Court in certain circumstances.

The draft order is made under Section 42 of the 2012 Act, which allows for provision to be made that is consequential on the Scotland Act 2012. The draft order makes consequential amendments to legislation to ensure that compatibility issues are properly taken account of in the criminal justice system. The draft order is subject to the affirmative resolution procedure because it makes amendments to an Act of the UK Parliament and an Act of the Scottish Parliament, and it is usual for such amendments to be subject to the affirmative procedure.

The draft order amends the Legal Aid (Scotland) Act 1986 to enable criminal legal aid to be provided in relation to compatibility issues. Section 21 sets out the meaning of “criminal legal aid” for the purposes of the Act and this includes appeals and references to the Supreme Court of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 21 so that criminal legal aid also includes appeals and references to the Supreme Court of compatibility issues.

Section 25AB of the Legal Aid (Scotland) Act 1986 makes provision for criminal legal aid in connection with appeals and references to the Supreme Court in respect of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 25AB so that it also makes provision for criminal legal aid in connection with references and appeals to the Supreme Court in respect of compatibility issues.

The draft order also amends the Criminal Justice and Licensing (Scotland) Act 2010. Sections 132 to 140 of this Act make provision for the disclosure of information by the prosecutor where a person convicted of an offence seeks to appeal against any aspect of that conviction. The draft order amends Section 132 so that the definition of appellate proceedings includes an appeal to the Supreme Court against the determination of a compatibility issue. This ensures that appeals in respect of compatibility issues will be treated in the same way as appeals of devolution issues in criminal proceedings for the purpose of disclosure of information by the prosecutor. The draft order, if approved by each House of Parliament, will come into force on 22 April 2013—the same day as the other orders relating to compatibility issues.

For completeness, it is perhaps worth mentioning that other consequential amendments are needed in relation to compatibility issues, but as these amend secondary legislation they are subject to the negative resolution procedure and are included in the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013. This order has been considered by the Joint Committee on Statutory Instruments, which made no comment on it.

Transitional provision—that is, provisions that are not included in the draft order that we are debating—has been made in respect of compatibility issues to ensure that the provisions of the 2012 Act take effect as quickly as possible. This will prevent two different criminal appeals systems operating in Scotland for a lengthy period and allow the benefits of the new system to take effect as quickly as possible. The transitional order achieves its aim by converting devolution issues relating to ECHR or EU matters in criminal proceedings that have been raised before 22 April 2103 into compatibility issues. The proceedings will then continue under the new compatibility issue procedure.

The Scotland Act 2012 also makes amendments that impose a time limit of 28 days on applying for permission to appeal a compatibility issue or a devolution issue in criminal proceedings to the Supreme Court. An application for permission must be made within 28 days of the date of the High Court’s determination. If that permission is refused, an application to the Supreme Court for permission must be made within 28 days of the High Court’s refusal. Both limits may be extended by the respective courts, where this is equitable given all the circumstances.

Again, transitional provisions—not included in this order—have been made in respect of existing devolution cases in criminal cases where there is a right of appeal. The time limit of 28 days will apply from 22 April this year, as opposed to the date on which the devolution issue was determined or when permission to appeal was refused.

This will also apply to devolutions that are converted into compatibility issues. The Government have been working closely with the Scottish Government in making arrangements for the commencement of these provisions in the 2012 Act. The Scottish Government have also discussed the arrangements with various bodies including the Supreme Court, the Crown Office, the Law Society of Scotland, the Faculty of Advocates, the Society of Solicitor Advocates and the Scottish Legal Aid Board. Both Governments are working together to publicise the transitional arrangements being made regarding compatibility issues and the changes made to the devolution issues by the Scotland Act 2012 so that practitioners are aware of these. I commend the order to the Committee and I beg to move.

[Lord McAvoy]

First, I thank the noble and learned Lord, Lord Wallace of Tankerness, for his very full explanation. I also thank the noble and learned Lord’s staff for their courtesy and co-operation. They are so polite that they even supplied me with questions to ask him. He has, however, dealt with these issues in his speech.

We support this continuing step on the path of devolution: it is a fine example of how the two Parliaments can work to make sure that devolution is furthered in a moderate, non-contentious way. I hope that continues and that comparatively small issues such as this order and the way it has been implemented will play a part in indicating to the people of Scotland that, when it comes to a referendum, they should vote very firmly to stay within the United Kingdom. I have nothing further to add, unless the noble and learned Lord’s staff have supplied him with questions to ask me. I thank all concerned for their courtesy.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord and endorse his sentiments about the importance of showing how the two Parliaments and two Governments can work together in the interests of the people of Scotland.