IMPROVING PRACTICE
CHAPTER 17 DEVOLUTION ISSUES
Introduction
17.1 In Chapter 3 I mentioned that in certain circumstances the Crown or the defence may appeal to the Judicial Committee of the Privy Council. That possibility arises only when the point in issue can be characterised as a "devolution issue" and only with leave of the High Court or special leave of the Judicial Committee of the Privy Council. 254 Consequently, some points of law arising in a case may be appealed to the Privy Council, and others may not.
17.2 Comments made to me in the course of the Review indicate that there are two grounds for concern about this. First of all, there is the question whether it is right, as a matter of principle, that in certain cases there should be this further right of appeal. The second concern relates to the delay and disruption which can arise in a case where there is a devolution issue.
Devolution Issue as a Constitutional Question
17.3 Preliminary issues, particularly pleas in bar of trial, and issues relating to the admissibility of evidence, become devolution issues in this way. The Lord Advocate and the Solicitor General for Scotland are Ministers in, and members of, the Scottish Executive 255. Section 57(2) of the Scotland Act is in these terms:
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or Act is incompatible with any of the Convention rights or with Community law".
17.4 Schedule 6 of the Act provides that the question whether a member of the Scottish Executive has failed to comply with section 57 is a devolution issue. Devolution issues fall into six categories in total. The two which in practice are relevant to the Lord Advocate's functions as a prosecutor are:
(d) A question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law, and
(e) A question whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with Community law.
The other four are:-
(a) A question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,
(b) A question whether any function (being a function which any person has purported, or is proposing to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
(c) A question whether the purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, within devolved competence, and
(f) Any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters 256.
17.5 It is not surprising that the argument has been advanced that, in the overall context of that schedule and section 57(2), the expression "acts" should be construed as relating to legislative or administrative acts, such as the making of orders or regulations, which might be regarded as comparable to legislation. That argument has been rejected 257. Since the implementation of the Scotland Act in 1999, the bringing of a prosecution by indictment, and the presentation of evidence in terms of that indictment, have generally been regarded as "acts" of the Lord Advocate 258. Indeed the conduct of a prosecution and the presentation of evidence by a procurator fiscal have also been accepted to be "acts" of the Lord Advocate 259.
17.6 Throughout the rest of the United Kingdom these issues are dealt with under the Human Rights Act 1998. Parties in legal proceedings there may found upon the Convention rights under that Act and have them upheld with the result that proceedings may be stayed or evidence ruled inadmissible. In the fourteen months between the introduction of the provisions of the Scotland Act relating to the position of the Lord Advocate and the implementation of the Human Rights Act, it was only in terms of the Scotland Act, and the devolution issue provisions, that reliance could be placed upon a Convention right. Since October 2000 the Human Rights Act 1998 has enabled precisely the same effect to be given in Scotland to the same Convention rights without resort to the devolution issue provisions. The very fact that the same question may be raised under both statutes in a Scottish prosecution has been described as a fertile breeding ground for problems and paradoxes 260.
17.7 That being so, the question raised with me is whether it is appropriate, in the context of the devolution settlement, that the Lord Advocate's conduct of his function as a prosecutor should give rise to an additional appeal, or whether such appeals should be confined to constitutional issues which arise from the devolution scheme. It is easy to see why the devolved system of government has been structured to take account of the State's obligations under the Convention and under Community law. As Lord Hope has observed 261, the same system has been adopted for the determination of devolution issues under the Government of Wales Act 1998 and the Northern Ireland Act 1998. These systems seek to achieve uniformity in the determination of devolution issues throughout all parts of the United Kingdom by reserving to the Judicial Committee of the Privy Council the power of final decision on all these matters.
17.8 On the other hand, it is not at all clear why that principle need apply to the acts of the Lord Advocate in his role as public prosecutor, when the compatibility of these acts with the Convention can be addressed by the Scottish Courts under the Human Rights Act 262.
17.9 It is ironic that pre-devolution the High Court was the final arbiter in all matters of criminal procedure and evidence, and was entrusted with the responsibility of ensuring that our criminal practice was in keeping with our obligations in International law, but in post-devolution Scotland the High Court has had to cede that role to the Judicial Committee of the Privy Council when, but only when, an act of the Lord Advocate is involved. Should a similar point arise in relation to the conduct of the Court itself or any other public authority, the final say reverts to the High Court.
Devolution Issues as a Source of Delay
17.10 The other aspect which has caused concern is the effect on the proceedings of the special procedural requirements, which presently apply to devolution issues, and the availability of a further appeal. There is a tendency for proceedings to be delayed and for the efficient running of criminal trials to be disturbed.
17.11 Under existing rules, devolution issues should be identified and intimated prior to the trial whenever possible. When that happens, the extended procedure available in such cases can substantially delay proceedings with the risk of prejudicing a fair outcome. An example can be found in the very case which gave rise to this and other reviews - the Chhokar case. The devolution issue in that case was prejudicial pre-trial publicity 263. The trial was delayed by in excess of a year while an appeal was presented to the Privy Council.
17.12 In practice, however, it is not practical to raise certain issues, for example, certain questions relating to the admissibility of evidence, prior to the trial. A devolution issue arising in the course of a trial has to be intimated to the Advocate General 264, who seldom intervenes and would, but for the creation of this highly artificial situation, have no interest in matters of criminal evidence and procedure. The requirement to intimate the issue means that the presentation of the evidence must be interrupted and the case adjourned 265, with consequential inconvenience to witnesses and jurors. In some cases more than one devolution issue has arisen during the trial. Interruption of the jury's concentration by lengthy or repeated adjournments could have an adverse impact on the fairness of the trial.
17.13 Other trials are delayed until the outcome of a test case awaiting determination by the Judicial Committee of the Privy Council. One such test case, due to be heard shortly, relates to the effect that unreasonable delay in proceedings should have upon those proceedings.
17.14 In the absence of compelling reasons for treating these issues as devolution issues, there can be no justification for the delay and disruption that is caused to certain cases. I am unable to identify any justification for treating these cases exceptionally, given that these issues can be dealt with under the Human Rights Act without any special procedure and without a further appeal to the Judicial Committee of the Privy Council. The only practical reason for ever categorising such issues as devolution issues was to ensure that recognition was given to the Convention rights during the period between the implementation of the Scotland Act and the implementation of the Human Rights Act, but even there it was a rather artificial way of introducing Convention rights to Scottish criminal procedure. That interim period is now over. Schedule 6 of the Scotland Act should be amended to make it clear that acts or failures to act by the Lord Advocate as prosecutor, and anyone acting on his authority or on his behalf as prosecutor, are excluded from the definition of a devolution issue. The Scottish Executive should urge the United Kingdom Parliament to make that amendment.