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Lord Renton: Before the noble and learned Lord leaves that point, can he tell us whether there is a

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precedent for enabling subordinate legislation to modify an international obligation, as proposed here? It is not only most unusual, but unprecedented. Indeed, I should have thought that it was against our constitutional principles. If a government have entered into an international obligation, it is true that sometimes, by primary legislation and with the agreement of both Houses, we may vary it, but not by subordinate legislation.

Lord Hardie: I cannot think at present of any example. Perhaps I may reflect on that matter and write to the noble Lord about it.

On Question, amendment agreed to.

[Amendment No. 292FCD had been withdrawn from the Marshalled List.]

[Amendment No. 292FD not moved.]

Lord Hardie moved Amendments Nos. 292FDA and 292FDB:


Page 45, line 11, after ("transfer") insert ("of a function").
Page 45, line 12, leave out ("of a function exercisable by a Minister of the Crown").

On Question, amendments agreed to.

[Amendment No. 292FE had been withdrawn from the Marshalled List.]

Lord Hardie moved Amendment No. 292FEA:


Page 45, line 14, leave out ("of a Minister of the Crown").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292FF:


Page 45, line 21, at end insert ("or its other adaptation").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 292FFA:


Page 45, line 21, at end insert--
("(4) No recommendation shall be made to Her Majesty in Council to make, and no Minister of the Crown shall make, subordinate legislation under this section which modifies a function of observing or implementing an obligation mentioned in subsection (5) unless the Scottish Ministers have been consulted about the modification.
(5) The obligation is an international obligation, or an obligation under Community law, to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), where the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Scotland).
(6) If subordinate legislation under this section modifies a function of observing or implementing such an international obligation so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be

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achieved under the obligation as is specified in the legislation, references in section 54 to the international obligation are to be read as references to the requirement to achieve that much of the result.").

The Deputy Chairman of Committees (Lord Skelmersdale): The Question is, That Amendment No. 292FFA be agreed to?

Lord Renton: Not-Content.

The Deputy Chairman of Committees: The Question is, That this amendment be agreed to? As many as are of that opinion will say, "Content"; to the contrary, "Not-Content".

Noble Lords: Content.

The Deputy Chairman of Committees: The "Contents" have it.

On Question, amendment agreed to.

Clause 97, as amended, agreed to.

Clause 98 [Agreed redistribution of functions exercisable by the Scottish Ministers etc.]:

Lord Hardie moved Amendment No. 292FG:


Page 45, line 28, leave out ("a Minister of the Crown") and insert ("the member of the Scottish Executive").

The noble and learned Lord said: In moving this amendment, I should like to speak also to Amendment No. 292FH. The amendments correct an error in the wording of Clause 98(1)(c). As drafted, subsection (1)(c) merely repeats subsection (1)(c) of Clause 59. It is intended that this should be a mirror image of that provision. The words "Minister of the Crown" and "member of the Scottish Executive" in Clause 98(1)(c) should be transposed if Clause 98 is to have its proper effect. That is what the amendments seek to achieve. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 292FH and 292FJ:


Page 45, line 29, leave out ("member of the Scottish Executive") and insert ("Minister of the Crown").
Page 45, line 33, leave out ("another person") and insert ("any other of those persons").

On Question, amendments agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 292FK:


Page 45, line 39, at end insert--
("( ) This section shall not apply to the functions exercisable by the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.").

The noble Lord said: These two small amendments, Amendments Nos. 292FK and 292FL, which stand in my name and that of my noble and learned friend, are intended to bolster the independence of the Lord Advocate in his discharge of his role of public prosecutor. That independence is already protected by Clause 27(5).

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Some time ago my noble and learned friend moved an amendment to Clause 26, seeking to exclude from judicial review any decision by the Lord Advocate or the Solicitor-General to decline to answer questions. When the noble and learned Lord responds to the latter, perhaps he could also respond to these other issues if he cannot do so this evening. I look forward to hearing the noble and learned Lord's reply to these two small issues about the independence of his office. I beg to move.

Lord Fraser of Carmyllie: The noble and learned Lord the Lord Advocate will not be surprised that, as far as is possible in this legislation, I seek to entrench that independence of the position of the Lord Advocate to which my noble friend referred. Again, we want to probe here whether that will indeed be possible. While the provision to which my noble friend referred would seem to set the Lord Advocate properly apart from the Scottish executive, it seems, unless I have misunderstood the existing provision, that it would be possible for those functions presently exercisable by the Lord Advocate to be moved to any one of a number of other Ministers within the Scottish executive. As regards the system of criminal prosecution, I consider that to be wholly unacceptable.

I raised this matter at an earlier stage in relation to Clause 54. I was concerned that the Secretary of State might be able to intervene in the activities of the Lord Advocate where, in some manner, an international obligation was involved. When I consider the most important criminal prosecution that the noble and learned Lord has on his books at present, it seems to me that issues regarding international obligations may well arise. I shall not get involved in that aspect at this stage but, if possible, I should like to have some reassurance from the noble and learned Lord that by resort to this provision in the Bill the position of Lord Advocate could to all intents and purposes be abolished and a completely different approach to criminal prosecution in Scotland be adopted.

What I am about to say may not be as supportive as the noble and learned Lord would like, but I am not as concerned about the power that he currently enjoys to investigate deaths in Scotland. That would be unnecessarily restrictive if, for example, we were taking this forward in such a way that it appeared we were effectively trying to entrench his position in relation to the 1976 Act regarding fatal accidents and sudden deaths (with which the noble and learned Lord is very familiar) and, therefore, not allowing for any changes. To my mind, that is not nearly as important as the vital role that the Lord Advocate fulfils as head of the system of criminal investigation and prosecution in Scotland.

I firmly believe that that is the linchpin of the distinctive character of the Scottish criminal legal system. If that could be played with at some time in the future, I would regard that as being wholly undesirable. I hope that the noble and learned Lord will give me the same kind of assurance that my noble friend

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Lord Mackay seeks; namely, that the distinct position in the system of the Lord Advocate could not be played around with in the future by resort to this provision.

Lord Hardie: The position of the Lord Advocate in relation to other Scottish Ministers on the Scottish executive is of course protected. Clause 98 raises a different issue as to whether the functions can be transferred from the Lord Advocate back to Westminster. The answer to the question posed is that it does appear on the face of the Bill as drafted that that would be possible. However, in our view it is unlikely that that would be done because the role and functions of the Lord Advocate are a key part of the overall devolution settlement.

Nevertheless, in view of the points raised by Members of the Committee, I should like to reconsider the matter and decide whether any clarification is necessary. With that explanation and undertaking to give further consideration to the matter, I invite the noble Lord to withdraw the amendment.


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