Lord Wallace of Tankerness (Liberal Democrat)
My Lords, we now move to Part 3 of the Bill. The amendments relate to the clause which allows that where an offence to which the section applies is committed in the United Kingdom, proceedings for the offence may be taken at any place in the United Kingdom and the offence may, for all incidental purposes, be treated as having been committed at any such place. The clause then indicates the offences which would be covered by this, with provision as to how the offences might be amended.
Nothing in the Bill indicates the criteria or procedure which might be followed to establish that a particular place in the United Kingdom will be where the proceedings take place. The amendments do not seek to set down criteria. I can foresee possible difficulties if criteria were established, as they would no doubt create a breeding ground where lawyers could pour over them to find ways in which certain criteria had not been met. However, we should perhaps at the very least expect a formal basis of agreement between the prosecuting authorities in two distinctive jurisdictions; otherwise there could be confusion and challenge.
When the Lord Advocate appeared before the Public Bill Committee in the other place, and when I raised this matter with the Minister in Committee, the response was that the present Lord Advocate wishes this and that she thinks that everything will work fine and that she and the Attorney-General get on well. I have never thought of that as a sound basis for a constitutional legal framework. I have no doubt that the Attorney-General and the Lord Advocate get on well, but it is not impossible that future holders of the two respective offices might not get on so well. Some formal recognition that a transfer of jurisdiction has taken place would at least ensure some certainty in the proceedings.
In addition, and this is why one of the other amendments in this group seeks to establish some protocols, there are a number of practical consequences that can arise from a transfer of jurisdiction. As I pointed out before, in Scots criminal law procedures there are certain time limits to be followed with regard to the serving of an indictment, or the time when a trial should start—140 days after committal. If a person is then moved from Scotland to England to stand trial in the Old Bailey rather than in the High Court in Glasgow, what happens to those time limits? Are they just arbitrarily dismissed because we have moved into a different jurisdiction? If the transfer was in the other direction and someone was transferred from England to stand trial in the High Court in Glasgow, that person would lose the right to habeas corpus. Should that really be done by administrative fiat without any background explanation being given?
Then there is the point about what happens in circumstances where a case with a substantial Scottish component is to be tried in the English courts but the Attorney-General decides, no doubt with good cause, not to proceed with a particular charge. Will the Lord Advocate be able to bring separate proceedings on a separate occasion in Scotland on a charge that has not been proceeded with in England? I do not know the answer, but if we are legislating on an important issue such as this it is reasonable that there should be some guidance on the public record that would indicate whether the Lord Advocate would be able to bring a charge in separate proceedings in such circumstances.
In Committee the Minister said:
"It had been said that the general principles would be articulated with the Attorney-General and Lord Advocate, and ... there has been mention of a protocol. Having thought about it, I believe it would be absolutely correct for a protocol to be seen by people, because there are technicalities that could cause problems and those little things can make quite a difference sometimes. If I may, I should like to go away and confirm when that is to be done. As I said, the Lord Advocate very much pushed for it to be done and I think that it makes sense to go down the route of a universal jurisdiction".—[Hansard, 15/10/08; col. 779.]
He said that he would look at the issue of the protocol. This is his opportunity to indicate, having looked at it, what is to be done about the protocol and when we are likely to see it. It could cover a number of important issues, and it would provide some reassurance, in putting this clause on to the statute book, that these understandings are there in the public domain. I beg to move.