Clause 185 - Power to enter premises under a warrant
Enterprise Bill
6:00 pm
Mr Alistair Carmichael (Orkney and Shetland, Liberal Democrat)
I have a few concerns about the clause, and I return unapologetically to the point that I made on Second Reading. I draw the Committee's attention to clause 185(5)(b), which defines ''Court'' in Scotland as the High Court of Justiciary. It seems bizarre that only the High Court of Justiciary is to issue a warrant in Scotland. Is the wording of the clause influenced by the fact that the High Court in England and Wales and the High Court in Northern Ireland are to be given the power to grant warrants? I understand from my consultants in English criminal law and procedure, the hon. Members for Huntingdon and for Cities of London and Westminster (Mr. Field), that the High Court in England is a court of civil
jurisdiction. The High Court of Justiciary is clearly a different sort of beast; it is an exclusively criminal jurisdiction.
As the normal procedure in the investigation of all offences is to give the power to seek a warrant to the procurator fiscal, who then goes to the sheriff court to obtain a warrant for investigation, at the very least I should think it appropriate for the warrant to be obtained from the sheriff court as well as the High Court. Given that there are some 22 senators of the College of Justice—judges in the High Court in Scotland—there is no need to burden them in the way proposed. I do not see why, either, the procurator fiscal should not be given the power to seek the warrant. I cannot think of another instance, with the possible exception of a few customs and excise offences, in which the procurator fiscal is not given the power to seek a warrant. I should be grateful if the Under-Secretary explained why the clause is so worded. It serves to reinforce my suspicion that the drafting of the Bill does not take sufficient account of separate Scots law and criminal procedure.