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Baroness Carnegy of Lour: At a recent meeting with civil servants of the Scottish Executive, a Scottish Law Lord was kind enough to comment that the drafting of Scottish Bills was extremely good. He believed that the way in which it was being done reflected very well on Scotland. I do not know whether the Minister has tried reading out loud the first four lines of the amendment but, by any standards, I cannot understand them. I do not know whether there has been confusion in their transmission or whether I am being stupid, but I do not believe that the law of Scotland should contain the clause.

Can the Minister tell the Committee what the amendment means? It states:


what is to be effected?—


    "or the document to be served outside the United Kingdom and the prosecutor believes that the person against whom it is to be effected or on whom it is to be served does not understand English".

The Minister explained why the adjustment had to be made—I am sure that we are all grateful that the Bill is being made wholly appropriate for Scotland—but can that wording be right? Will the noble Lord check that the wording is right? Perhaps there is a lawyer on the Committee who will tell me that it is right. I simply do not understand what it means.

Baroness Anelay of St Johns: I join with my noble friend's request for clarity. As I understand it, by inserting Amendment No. 19 into the Bill subsection (3) would state:


    "Where citation or issue is by the court, is to be effected or the document to be served outside the United Kingdom and the person at whose request that is to happen believes that the person against whom it is to be effected or on whom it is to be served does not understand English, he must".

I do not understand that English. I would be grateful for clarification on how that would operate.

Lord Goodhart: The noble Baroness, Lady Carnegy, has challenged me but I find it no easier to understand than she does. It seems to me, although I am not knowledgeable in Scots law, that it should read:


    "Where citation or issue is by the prosecutor and is to be effected or the document is to be served".

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That may make some sense. The wording at present does not.

Baroness Carnegy of Lour: Those are precisely the changes I had pencilled in myself. The noble Lord and I must be right between us.

Lord Filkin: I was invited to make one of two responses to the noble Baroness, Lady Carnegy of Lour: either to explain what it means or to go away and check whether we believe it is accurate. Of the two courses, I shall take the latter. It seems to my advisers that there may well be a typo here. Rather than make amendments on the wing, we shall double check and write to the noble Baroness. I am almost certain that that is the case, which puts me in the unfortunate position of, yet again, having to acknowledge the skill of the noble Baroness, Lady Carnegy of Lour, in the scrutiny of Scottish legislation—or, rather, legislation affecting Scotland.

The Deputy Chairman of Committees (Baroness Fookes): Is the Minister seeking to withdraw the amendments?

Lord Filkin: No. I do not wish to withdraw them at this stage. I should like to have the amendments incorporated into the Bill but, with the leave of the Committee, on the undertaking that we shall bring forward clarification on Report if, as I believe is the case, there is a typographical error. I shall write to Members of the Committee who have spoken on this issue well before Report stage so that there is no doubt whatever about that.

Baroness Anelay of St Johns: At this stage we agree to the Minister's request for imperfect legislation—which this may well be—to go through, but it should be on the record that we on these Benches allow this to happen with sorrow. We are in Grand Committee and we cannot take any other action. As the Government have decided not to give an explanation, we are being asked to adopt an amendment which we believe to be wrongly drafted. However, on the basis that we shall take action on Report if the Government are unable to give a proper explanation or redrafting by that stage, we shall not object at this stage. It is one of the difficulties we face in Grand Committee that we are not able to press the matter further.

Lord Filkin: I would not wish the Committee to imagine for one second that I am treating the matter lightly. At this stage I seek merely to get the amendment into the Bill while giving the categoric assurance that we believe there is a typographical error. I could make an amendment on the wing, but that would be to run the risk of compounding the problem. It is wiser that I bring back, as is likely to be the case, a further amendment on Report having got the matter into the Bill at this stage. I give the strongest commitment to the Committee that we are not treating the matter frivolously.

On Question, amendment agreed to.

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Lord Filkin moved Amendment No. 19:


    Page 3, line 40, leave out "the citation" and insert "citation or issue is by the court,"

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Effecting Scottish citation etc. otherwise than by post]:

Baroness Carnegy of Lour moved Amendment No. 20:


    Page 4, line 19, leave out "by the Lord Advocate" and insert "under regulations made by the Scottish Ministers"

The noble Baroness said: Amendment No. 20 is the first of five amendments which the Law Society of Scotland is anxious that the Committee should consider. In this amendment, and three of the other four, the suggestion is that under Part 1 of the Bill as it applies to Scotland, some of the functions assigned to the Lord Advocate should in fact be given to Scottish Ministers. The Law Society has chosen four examples; I suggest that we have already passed one example to which this argument may apply under Clause 1, although I am not sure of that.

On page 7 of the Government's Explanatory Notes, it states that Clause 6 is the Scottish equivalent to Clause 4 The notes continue:


    "It reflects the provisions of clause 4 but provides that the Lord Advocate, rather than the Secretary of State is to make arrangements for service of a citation or document otherwise than by post".

The Explanatory Notes do not explain why this difference should be made in Scotland.

The Law Society points out—this occurred to me before it wrote to me—that it would be better in Scotland, too, if the arrangements were made not by the Lord Advocate but by Scottish Ministers. The Lord Advocate is a Member of the Scottish Parliament and a Minister in the Scottish Executive. He is also responsible for all prosecutions in Scotland. He wears all the time two hats. The Law Society suggests that there could well be under this clause a conflict of interest for the Lord Advocate because in carrying out his roles as prosecutor and of setting up these arrangements he will be performing two conflicting tasks.

The Law Society also states—this is a different point and I am not sure whether it is right—that the arrangements the Scottish Ministers make should be made by order so that they are in black and white in secondary legislation. This would be different to the arrangements for England and Wales under Clause 4, but that is the preference of the Law Society of Scotland. When I asked the Law Society to explain why it thought it should be different, it simply said that it thought it would make better Scots law. I am not in a position to argue about that.

I shall be interested to hear the Minister's reply. It is an argument that will arise in later amendments but they relate to different circumstances. They are not grouped and it is better that we treat them separately. I beg to move.

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5.45 p.m.

Lord Filkin: As the Committee is aware, this clause is the Scottish equivalent to Clause 4 and is needed to reflect the Scottish procedure of citation. In Scotland, the Lord Advocate will carry out the functions given to the Secretary of State in the remainder of the United Kingdom.

The proposed amendment to Clause 6 returns to the theme of requiring additional regulations. Clause 6(1) provides that citations and other documents in Scottish criminal proceedings which are not effected or served abroad by post are to be effected or served in accordance with arrangements made by the Lord Advocate. The amendment proposed would have the effect of replacing arrangements made by the Lord Advocate with arrangements made under regulations by Scottish Ministers.

The Government do not believe that it would be helpful to establish under regulations the arrangements for effecting citation abroad in cases where direct transmission is not used, for whatever reason, as proposed by the amendment. The 1990 Act refers to arrangements made by the Secretary of State in the same way as the Bill refers to arrangements made by the Lord Advocate. These arrangements have never been defined by regulations and the Government consider it unnecessary to do so now.

Seeking to have arrangements set out in regulations is a common theme of some of the amendments we have discussed so far. We have already referred to it in connection with Clause 1 and Clause 4 and, again, we argued that it was unnecessary.

With regard to the replacement of the Lord Advocate by Scottish Ministers, again we do not believe it appropriate. The Lord Advocate will be fulfilling the administrative role of central authority for Scotland, and where it is not possible to effect citation by post, requests for assistance of this kind will be dealt with by his office, and the Bill is correct to reflect that position in Clause 6.

Although mutual legal assistance in England and Wales is dealt with in the Home Office, in Scotland it is dealt with in the Crown Office under the direction of the Lord Advocate. It has worked well like this in Scotland since 1990. Indeed, we are suggesting that the Lord Advocate should become the territorial authority for mutual legal assistance generally in Scotland. The Scottish Ministers at large have no role in the execution of mutual legal assistance. For these reasons, we believe the amendment is unnecessary and undesirable.


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