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Lord Mackay of Drumadoon: While my noble and learned friend is refining his examples, I think I should take away the amendment and refine the drafting. Clearly, certain words were left out, as will be obvious to more than one noble Lord.

I did not feel that the noble and learned Lord the Lord Advocate gave a full answer. I hope that while my noble and learned friend and I are reflecting so, too, will the Government. This seems a perfectly innocuous suggestion. Time and again Ministers have said that they are prepared to look constructively at ideas which do not in any way attack the integrity of the Bill. This seems a very good example. I hope that when we return to the matter on Report, it may be possible to reach agreement on all sides. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 agreed to.

Clause 25 [Witnesses and documents: general]:

6.45 p.m.

Lord Mackay of Drumadoon moved Amendment No. 140:


Page 13, line 22, after ("oath") insert ("or affirmation").

The noble and learned Lord said: This is a small amendment which seeks to make it clear that a person taking the oath in terms of Clause 25 can either take the oath or affirm.

I fully accept that under Section 5(4) of the Oaths Act 1978 the definition of "oath" includes "affirmation". Therefore, as a matter of law this amendment could no doubt be said to be unnecessary. I nevertheless believe that it would be sensible to make it clear on the face of the Bill that, when the question of administering an oath arises, it can be either an oath or an affirmation. Lest

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I need support for that constructive suggestion, I point to the provisions of Clause 20 of the Government of Wales Bill, where that is made clear. Subsection (2) states:


    "The oath shall be taken (or the affirmation made) before a person appointed by the Assembly".

What is good enough for members of the Welsh assembly would seem sensible for members of the Scottish parliament. I beg to move.

Baroness Carnegy of Lour: Wales apart, in this case it is very important that the Bill should be clear to ordinary people. One can be fined up to £5,000 for refusing to take the oath. It would be terrible if there were a misunderstanding because someone did not know that he could affirm, perhaps because he had not read the 1978 Act. That is a point on which the noble and learned Lord should be flexible.

Lord Hardie: As the noble and learned Lord, Lord Mackay of Drumadoon, explained, it is unnecessary to have a reference to "affirmation" in terms of the Oaths Act 1978. The Government of Wales Bill deals with a different type of assembly. But for the Scottish legislation, we have taken to heart the suggestions of noble Lords opposite that we should not put in unnecessary provisions.

Lord Mackay of Drumadoon: If the noble and learned Lord the Lord Advocate expects me to believe that, not having heard that very cogent argument from myself and the noble and learned Lord, Lord Simon of Glaisdale, on the first day of Committee, he has another think coming.

I regret once again that a small suggestion which would make clear to the people of Scotland the procedure to be followed is rejected out of hand. I cannot see how it makes any difference whether one is a member of the assembly in Wales or the parliament in Scotland as regards this small matter. One begins to gain the impression that on even the smallest of details this Government, who claim to be a listening Government, are not paying any attention whatever to what is said in this Chamber. There are more important matters than this on which to divide the Committee. However, it is a matter of regret that I have not received a more constructive response on such a small issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

[Amendment No. 141 not moved.]

Clause 26 [Participation of the Scottish Law Officers]:

Lord Mackay of Drumadoon moved Amendment No. 142:


Page 14, line 8, at end insert--
("(4) Any decision by the Lord Advocate or the Solicitor General for Scotland to decline to answer a question or produce a document under subsection (3) shall not be reviewable by any court.").

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The noble and learned Lord said: This is a small but important amendment to Clause 26, which deals with the participation of what are described as "the Scottish Law Officers" in the deliberations of the Scottish parliament and provides in subsection (3) that:


    "The Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if he considers that answering the question or producing the document--


    (a) might prejudice criminal proceedings in that case, or


    (b) would otherwise be contrary to the public interest".

What is set out in subsection (3) accords with what I understand to be the current practice which successive Lords Advocate have adopted in this Parliament, whether they have been Members of your Lordships' House or Members of another place, when they have been asked to respond to questions about individual criminal cases or the operation of the criminal prosecution system. The practice that has been adopted is reflected in the standing orders of another place and in the remit which has been given to the Parliamentary Commissioner for Administration. Therefore, I warmly welcome what I find in subsection (3) of Clause 26, which would apply whether or not the Lord Advocate is to be devolved, an issue which we shall address some days hence.

The protection which that subsection provides is linked to other protections which the Lord Advocate enjoys in his role as an independent public prosecutor. The courts in Scotland, and in particular the High Court of Justiciary, have over the years consistently declined to inquire into or to review any decision by the Lord Advocate, or one of his Advocate Deputes acting in his name, or by the procurator fiscal as to whether an individual accused should be prosecuted, the charges upon which a prosecution is brought or the charges on which a restricted plea of guilty has been accepted by the Crown.

Linked with that has been a refusal on the part of the court to expect the Lord Advocate to give reasons for his decision, a stance which has been widely welcomed in many quarters for protecting the interests of potential accused, the accused themselves, the victims of crime and witnesses, whether or not they are cited to give evidence in court. It is also welcomed because it protects the confidentiality of the criminal investigations carried out by the police force and the Lord Advocate's consideration of the evidence which has been placed before him by the police and other criminal investigation agencies such as Customs and Excise and others.

It was established during the debates on the Human Rights Bill that under certain limited circumstances, contrary to the practice which I have described, decisions of the Lord Advocate will be reviewable against convention rights. I believe that to have been a significant change in the practice of the criminal law in Scotland, but it is not necessary to revisit that issue today. I accept that it may happen in occasional cases, and I accept that, when it does, the Lord Advocate may have to give reasons for his decision, and indeed may be required by the court to do so to enable the court to address the issue as to whether or not the convention

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rights of an individual have been infringed. They could, of course, be the convention rights of an accused person or those of his alleged victim.

It nevertheless seems appropriate to try to keep the role of the courts in this matter as tightly controlled as possible. That is the purpose behind the amendment. I have little doubt that the provisions set out in subsection (3) will be strictly administered by the presiding officer and his deputies. I have little doubt that they will be respected by the members of the Scottish parliament who seek to question the Lord Advocate or the Solicitor-General for Scotland. But in many instances those questions which are asked will have originated from constituents of the members of the parliament. Indeed, with regional members, they need not even be constituents. Whether they be alleged victims or accused persons, they will go to a member of the parliament and ask for the matter to be raised. If the Lord Advocate or the Solicitor-General decides, for perfectly valid reasons, not to answer the question, while the member of parliament may accept that, the victim or the accused may not.

I have a concern that, faced with a refusal in the open court of parliament by the Lord Advocate to answer the question, the disgruntled victim or accused may then go off to the courts. The purpose of the amendment is to cut off that route and to protect, as far as humanly possible, the independent role of the public prosector in Scotland which subsection (3) has been drafted to protect. It is a small amendment, but I believe it is an important one. I beg to move.

Lord Hardie: The amendment raises an important point, on which we have been interested to hear the views of the noble and learned Lord, Lord Mackay of Drumadoon. Clearly there is a delicate balance to be struck between the independence of the Lord Advocate in exercising his prosecution function, an independence which both the courts and Parliament recognise, and his political accountability. As the noble and learned Lord observed, Clause 26 is one of a number of provisions in the Bill which safeguard the independence of the Lord Advocate and the Solicitor-General. However, the Lord Advocate will be politically accountable to the parliament.

There are some circumstances in which it will be right and proper for the Lord Advocate to answer questions and give information about particular cases. I would cite as a precedent the former Lord Advocate, the noble and learned Lord, Lord Mackay of Clashfern, who explained to this House in 1982 the reasons why a case had not been prosecuted. That case became known as the Glasgow rape case.

However, it is also right that the Lord Advocate and the Solicitor-General should be given a discretion to decline to answer questions or to produce documents relating to the operation of the system of criminal prosecution in a particular case if he considers that it might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest to disclose the information. It should clearly be within the

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discretion of the Lord Advocate and the Solicitor-General to decide when to decline to answer a question or to produce a document on these grounds.

The noble and learned Lord raises a very interesting point. It is an aspect of the wider question as to the extent to which anything said or done in Parliament should be the subject of judicial proceedings and also of the wider question, to which the noble and learned Lord, Lord Hope of Craighead, referred in previous proceedings, in relation to the question of interim interdict.

I agree that this is a matter which needs careful reflection. I can assure noble Lords that the Government are considering the matter at present. We shall look carefully at the point raised by the noble and learned Lord to see whether any amendment to the Bill is needed which is consistent with what is in the Bill. I hope that the noble and learned Lord will accept that we are a listening government. With that explanation, I trust that the noble and learned Lord will withdraw his amendment.

7 p.m.

Lord Fraser of Carmyllie: I was hoping that the noble and learned Lord would give a much more robust answer and indicate that in no circumstances whatever might the decision of the Lord Advocate and Solicitor-General be reviewable in a court of law. But I can understand his caution.

I am sure that my noble and learned friend and the Committee are grateful to the Minister for indicating that this matter will be reflected upon further by the Government. However, the one aspect of it that I hope will be clearly within the focus of their reflection is the difficult point raised by my noble and learned friend in relation to human rights legislation. As we are all grappling to understand what will be the potential extent of the right to have decisions by the Lord Advocate and Solicitor-General reviewed in courts, perhaps I can put the noble and learned Lord on notice that when we return to this matter, we will expect a specific answer on that issue.


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