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The Earl of Mar and Kellie: My Lords, once again I am grateful to the Minister for detailing the procedures in the Scottish jurisdiction and for the praise offered to that institution—a pre-Union institution, I remind noble Lords. I also thank the noble Baroness, Lady Carnegy of Lour, for her support. As someone who used to work in the criminal justice and social work arena in Scotland, I know that making certain that there were no unlawful fishing trips by search was always important on the ground. The Law Society of Scotland, in particular, will be interested to read the Minister's answers so that it, too, can understand why the amendment is not necessary. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 285B not moved.]

The Earl of Mar and Kellie moved Amendment No. 285C:



"CODE OF PRACTICE IN SCOTLAND
(1) The Scottish Ministers must issue codes of practice in connection with—
(a) the exercise of the powers conferred by this Part;
(b) the retention, use and return of anything seized or produced under this Part; and
(c) access to and the taking of photographs and copies of anything so seized or produced.
(2) If the Scottish Ministers propose to issue a code of practice under this section, they must—
(a) publish a draft of the code;
(b) consider any representations made to them about the draft; or
(c) if they think it appropriate, modify the draft in light of any such representations.
(3) The Scottish Ministers must lay the code before the Scottish Parliament, and when they have done so they may bring the Code into operation by order.
(4) The Scottish Ministers may revise the whole or any part of a code issued under this section and issue the code as revised; and subsections (2) and (4) apply to such a revised code as they apply to the original code.
(5) A code issued under this section is admissible in evidence in proceeding under this Act and must be taken into account by a judge or court in determining any question to which it appears to the judge or the court to be relevant.
(6) The power conferred by subsection (3) above on the Scottish Ministers to make orders shall be exercisable by statutory instrument.
(7) A statutory instrument containing an order under subsection (3) above shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."

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The noble Earl said: My Lords, the amendment deals with whether Scottish Ministers should be required to issue a code of practice for extradition in Scotland. That would give general guidance to practice and run in parallel with the specific instructions of the Crown Office and, of course, the Lord Advocate. The code of practice and the specific instructions would have a similar relationship to that of the Highway Code and the Road Traffic Act. The process would be similar to Section 24 of the Regulation of Investigatory Powers (Scotland) Act 2000 and to the Police Act 1997. The code of practice would provide an accessible reference point. The Lord Advocate would find it useful and beneficial if he were required to use it. I beg to move.

Baroness Carnegy of Lour: My Lords, this is, again, a matter that I raised in Grand Committee. At that time, the noble Lord, Lord Filkin, replied that it was for the Scots to decide whether they required a code of practice in this context. He argued that it would be inappropriate to provide for a code in the Bill, because in Scotland the police operate under the Crown Office, not under Scottish Ministers and, in any case, only one Scottish police force would be involved.

As the noble Earl said, the Law Society of Scotland continued to query that. It has pointed out that there is a requirement in the Regulation of Investigatory Powers (Scotland) Act 2000 for Scottish Ministers to issue a code of conduct for anyone undertaking surveillance. It suggests that police behaviour is a matter for Ministers, whereas the operation is a matter for the Crown Office.

I have received a contrary argument, which may support the argument that the noble Baroness is about to deploy on behalf of the Government. The noble and learned Lord, Lord Cameron of Lochbroom, who was of course a distinguished Lord Advocate and judge in Scotland, points out that in a later clause the Bill makes the Lord Advocate responsible for immigration cases. He can give directions to those in his own department—the Crown Office—both generally and specifically. He also has statutory powers in the Police (Scotland) Act 1967 and can give directions to the police, at least so far as a prosecution of crime is concerned.

As a previous Lord Advocate, the noble and learned Lord tells me that he feels that the Lord Advocate would prefer to be in control of police activity on the matter. He is a Minister, so Scottish Ministers could include the Lord Advocate, but if further clarity were required it might be preferable that the matter be dealt with in the clause defining the power of the Lord Advocate rather than in this context. Therefore, although I have put my name to the amendment, I am now a little less full-hearted about it.

Noon

Lord Bassam of Brighton: My Lords, I believe that much of the ground relating to this issue was covered in the previous debate. I am persuaded by the noble

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Baroness's argument—indeed, it reflects the argument that we laid out previously. However, it is perhaps worth saying a few words on the matter.

The amendment would try to transport into the Scottish system codes of practice which are more familiar to us within PACE. That is the essence of what the noble Earl, Lord Mar and Kellie, seeks to achieve. As we made plain previously, we do not believe that Scottish codes of practice are necessary and I shall try to explain why.

First, I believe that the tradition in Scotland is that codes of practice are rarely issued in relation to criminal matters or proceedings. The police in Scotland look to the Criminal Procedure (Scotland) Act 1995 to provide them with the basic procedural rules and framework within which they carry out their normal procedures of searching and fingerprinting and the usual mechanics of gathering evidence.

Secondly, as my noble friend Lady Scotland explained earlier, all police powers in Scotland, including those contained in Part 4 of the Bill, are exercised under the direction of the Crown Office and Procurator Fiscal Service. Section 17(3) of the Police (Scotland) Act 1967 makes it clear that police officers must comply with the lawful instructions of the procurator fiscal in the investigation of crime. Indeed, it is the procurator fiscal who must apply to the sheriff for a warrant to search under Clause 158 and who is responsible for the decision to deliver up evidence seized to the requesting state.

Also, by virtue of Section 17 of the Police (Scotland) Act 1967, in directing the constables of a police force in relation to the investigation of offences, the chief constable of any area must comply with the lawful instructions of the procurator fiscal, who is effectively the local representative of the Lord Advocate. Those instructions can be very specific and reflect the fact that the procurator fiscal has responsibility at local level to direct all stages of the police in the investigation of crime.

We believe that a code of practice issued by Scottish Ministers to the police in relation to the investigation of substantive crime could be seen as interference in the role of the Lord Advocate. We consider that to be an unnecessary interference with Scots criminal law. Therefore, we see no reason to differ from what I believe can be safely described as existing, accepted, trusted and well tried ways of working and, more importantly, of safeguarding the operation of police powers and procedures in Scotland.

Therefore, we believe that this is an unnecessary amendment and that it would unnecessarily complicate matters in a situation where there is already clarity and understanding in relation to the way in which police operations are guided.

Baroness Carnegy of Lour: My Lords, before the noble Lord sits down and with the leave of the House, does he accept, despite his reply, that the Lord Advocate is a

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Member of the Scots Parliament and a Minister? Therefore, the distinction is not as clear as it might be in these matters.

Lord Bassam of Brighton: My Lords, I am at one with the noble Baroness in her understanding of the situation. I quite agree.

The Earl of Mar and Kellie: My Lords, I am glad that the noble Lord is coming round to accepting that the Lord Advocate is a Scottish Minister. I thank the noble Baroness, Lady Carnegy of Lour, for her two-handed support—it feels neutral from where I am standing. Can the Minister clarify that nothing in the Bill would prevent the Lord Advocate or Scottish Ministers issuing a code of practice if they wished to do so? I am not certain what indications I am receiving from the noble Lord.

Lord Bassam of Brighton: My Lords, it is the case that the Criminal Procedure (Scotland) Act 1995 provides the Lord Advocate with the power to issue instructions to chief constables. That, in itself, is a form of guidance and I believe that it provides the procedural and constitutional safeguards which I suspect the noble Earl seeks to put on to the face of the Bill.


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