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Lord Fraser of Carmyllie: I am grateful to the noble Baroness for her explanation. She may recall from an earlier stage that one of the issues in this Bill that interests me is how, when the Scottish parliament passes an Act, it achieves any legislative effect in England, Wales or Northern Ireland.

At the present time, if a Scottish Bill is passed within this Parliament, it is almost invariably the case that at least one or two clauses within that Bill will allow certain provisions of it, although primarily for application in Scotland, to extend into England. It has always seemed to me to be a problem that we ought to confront and try to resolve. It would be absurd if in some key social or criminal activities the Scottish parliament, with a proper, clear purpose, sought to resolve that issue in Scotland but found that it had no prospect of applying such provisions somewhere as close as Carlisle or Newcastle and found that much of the efficacy of what it sought to achieve was thereby limited.

As I understand this provision, it is intended for the circumstance in which the Scottish parliament, unintentionally or erroneously, goes further than it should in terms of its legislative competence and acts, accordingly, ultra vires. I wondered whether the provision might conveniently be used as a device, so that, when the Scottish parliament wanted part of an Act to be extended to England, a simpler route than taking primary legislation through the Westminster Parliament, could be achieved by secondary legislation. It strikes me as an intriguing possibility. Although I do not expect the noble Baroness to provide a complete answer now, I hope that before we come to the next stage the Government may reflect on that.

Baroness Ramsay of Cartvale: I can give a partial answer. An Act of the Scottish parliament can make provisions only in Scots law. Clause 95 could be used by the UK Government to apply a provision to English law. As regards the rest of the question, I shall accept the noble and learned Lord's request to write to him.

Lord Mackay of Drumadoon: I am grateful to the noble Baroness for explaining the approach that the colonial governor might seek to take if, for whatever reason, he or she is of the view that an Act of the Scottish parliament is ultra vires or might be ultra vires or if a purported exercise by a member of the Scottish executive is (or may not be) a proper exercise of a function.

I have great difficulty with that order-making power being one which does not require the affirmative resolution procedure. A subsequent amendment was designed to address that issue but has been pre-empted by the rewriting of the provisions dealing with subordinate

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legislation. We shall have to address that again on Report. I fully understand the reasoning, but I remain somewhat apprehensive about how that will work in practice.

Unlike my noble and learned friend Lord Fraser of Carmyllie, who may be of the opinion that the provision would be used only when the Scottish parliament or Scottish executive unintentionally traversed the borders of competence, I am concerned that that will be done intentionally at some stage in the future to test the legislation and the will of the United Kingdom Government, for whatever reason. That is where I am at one with the noble Lord, Lord Steel of Aikwood, who I am sorry to see is not in his place. These matters are political issues which should be resolved by politicians and not by orders which may have to be construed and ultimately enforced by courts of law. At this stage, I do not oppose Amendment No. 291KA.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291L:

Page 43, line 39, at end insert--
("(2) No person shall be guilty of an offence solely as a result of the retrospective effect of subordinate legislation made under subsection (1) above.").

The noble and learned Lord said: This amendment seeks to achieve the simple purpose that if, for whatever reason, the order-making power provided for in Clause 92 is used, under no circumstance can it be used to create a criminal offence with retrospective effect. It would be inequitable to leave open that possibility and this amendment is designed to stop that. I beg to move.

4.45 p.m.

Lord Hardie: Again, I agree entirely with the sentiment behind the amendment. In our submission, it is not necessary. Any order under this Bill will have to comply with the Human Rights Bill, which by then will be enacted. Article 7(1) of the convention, which will be incorporated into domestic law by then, prohibits that precise situation. No one can be held guilty of a criminal offence on account of an act or omission which did not constitute a criminal offence under national or international law when it was committed. That is the simple answer. With that explanation, I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon: I am grateful for that explanation, which I assume would, on the basis of an undertaking by the noble and learned Lord, cover the situation which may arise in the period between the coming into force of this Bill and the Human Rights Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291M not moved.]

Clause 92, as amended, agreed to.

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Lord Mackay of Drumadoon moved Amendment No. 291MA:

After Clause 92, insert the following new clause--

Courts to take account of decisions that acts ultra vires: criminal cases

(" .--(1) This section applies where in criminal proceedings a court decides that--
(a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or
(b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve.
(2) When a court reaches any decision to which this section applies, it, and any inferior court bound by its decision, shall take account of and act upon any such decision in the conduct of the criminal proceedings in which the decision was made.").

The noble and learned Lord said: This amendment and Amendment No. 291MB raise important issues about what will happen in criminal proceedings throughout the United Kingdom, but primarily in Scotland, if it is argued before a court, and the court reaches the view, that an Act of the Scottish parliament or any provision of such an Act was outwith the legislative competence of the parliament, or that a member of the Scottish executive did not have the power to make, confirm or approve a provision of subordinate legislation that he had purported to make, confirm or approve.

As drafted, Clause 93 seeks to specify certain powers that a court or tribunal would have if it reached such a view. At this juncture, we are dealing with criminal courts. In criminal cases, that might arise in one of two situations. I refer first to cases where the alleged illegality of the primary legislation and of the subordinate legislation--the alleged lack of competence--justified the mounting of a challenge to the competency of the charge which the particular accused was required to face in criminal proceedings. He might be charged with contravening a section of an Act of the Scottish parliament. His initial line of defence, which in all probability would be raised at the preliminary stage of any proceedings before any trial commenced, would be that the Scottish parliament did not have the competence to make such legislation and to create such an offence, and for that reason he could not be prosecuted for it and convicted.

The second general area where such an issue might arise relates to the admissibility of evidence. That might arise in one of two ways. An accused may be able to argue that the statutory procedures under which the evidence had been recovered, whether by way of some search or seizure, was outwith the competence of the parliament or the executive because the procedure constituted a breach of convention rights and was therefore outwith the competence. Alternatively, he may be able to argue that the new rules of evidence that the Scottish parliament required the courts to follow again amounted to breaches of convention rights and therefore the charge should not have been laid or the evidence admitted. Technically speaking, that could arise in

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proceedings in other parts of the UK but, in all probability, this particular matter is one which we can confine to Scotland.

As presently drafted, Clause 93 would provide that if a criminal court reached such a view that the charge was incompetent for the reason that the legislation should not have been enacted or that the evidence had been recovered or was about to be admitted by rules of evidence, which were equally in breach of convention rights and, for that reason, ultra vires, it would, nevertheless, have options open to it within its discretion. The first of those options is contained in subsection (2)(a); namely, that it could remove or limit,

    "any retrospective effect of the decision"
on competency. In other words, the court will say, "I am perfectly satisfied that, on the date you committed the offence, the parliament did not have power to create such an offence or in some way limit any retrospective effect of the decision". It is inconceivable that a court would ever make such an order but, ex facie of the legislation, that appears to be possible. Similarly, under subsection (2)(b), the court could in some way suspend the effect of its decision on the legal question involved for a period,

    "to allow the defect to be corrected",
presumably by the Scottish parliament or the Scottish executive remaking the offending subordinate legislation.

It seems to me to be unsatisfactory to admit the possibility of that occurring. I suggest that the approach should be as follows. If the court in criminal proceedings is satisfied that some provision of the legislation coming out of the Scottish parliament or made by the Scottish executive was indeed ultra vires at the date it was made, it should apply that decision there and then. To do otherwise would run the risk of an almost inevitable breach of convention rights as set out in the European Convention on Human Rights.

I very much hope the Government will be prepared to look again at how this particular clause will apply in criminal proceedings. Of course, it would apply not only to subordinate legislation made by the Scottish executive in terms of the executive powers devolved to it in the Bill; it could also apply theoretically to the executive competence to be devolved by way of a Section 59 order. Again, it would be helpful if that matter could also be considered. We wish to minimise as far as possible any unnecessary concerns or litigation arising from the provisions of the Bill or the role that the courts will have to play after devolution. As a first step, it seems to me that looking at criminal proceedings separately would be a valuable way to proceed. I beg to move.

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