Section 11 — Provision of assistance to the ICC

International Criminal Court (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:00 am on 13th September 2001.

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Photo of Patricia Ferguson Patricia Ferguson Labour 10:00 am, 13th September 2001

Amendment 1 is grouped with amendments 2, 29, 6, 7, 30, 10, 11, 31, 32, 17, 18, 33, 21, 34, 24, 36, 37, 38 and 39.

Photo of Lord James Selkirk Lord James Selkirk Conservative

In lodging amendment 1, we are concerned with the principle that the Lord Advocate's post is one of the great offices of state and that that office is independent of any other person.

Over the centuries, the Lord Advocate has been responsible for our system of criminal prosecution and the investigation of deaths in Scotland. That function was extended in the Proceeds of Crime (Scotland) Act 1995 and the Criminal Law (Consolidation) (Scotland) Act 1995. Under those acts, the investigation of the proceeds of crime and applications for freezing or restraint orders in respect of property liable to forfeiture is in the specific remit of the prosecutor. The International Criminal Court (Scotland) Bill seeks to change that and it represents a whittling away and a diminution of the role of the Lord Advocate.

It is ironic that I should have to defend the Lord Advocate from his colleagues. In response, the Executive takes the view that the functions in part 2, which relates to the provision of assistance to the international criminal court, fulfil the Executive's international obligations. Those functions include directing the chief constable to serve documents; directing the procurator fiscal to apply to the sheriff for a warrant for entry, search and seizure; and directing authorised persons to apply for production orders or warrants in the course of an investigation into the proceeds of crime. The Executive might be correct, but those functions relate to the investigation and prosecution of crime and to the direction of the prosecution authorities in fulfilling those obligations. Therefore, part 2 removes or erodes the independent element of dealing with extremely serious matters involving crimes against humanity. Great as the expertise of the Deputy First Minister might be, it is, I regret, on a different plane altogether from that of the Lord Advocate.

The Lord Advocate and his staff represent the independent element, which is a major factor in Scotland's criminal justice system. Any attempt to erode the Lord Advocate's powers and functions should be strongly resisted.

If we lose the vote on the principle, we will seek to restore the Lord Advocate's legitimate powers and functions at the first available opportunity. I will seek one division on the issue and not 20, as we consider the principle involved to be important.

I move amendment 1.

Photo of Tavish Scott Tavish Scott Liberal Democrat 10:15 am, 13th September 2001

That was stirring stuff. Lord James Douglas-Hamilton rightly said that the Lord Advocate is independent of other persons. The Scotland Act 1998 provides statutory functions that apply to the Lord Advocate, which are legally enforceable by him. From my understanding of the amendments it strikes me that, as the Deputy Minister for Justice said when the issue was considered at stage 2:

"it would be appropriate to confer new statutory functions on the Lord Advocate only where they relate to his position as head of the systems of criminal prosecution and investigation of deaths in Scotland."—[Official Report, Justice 2 Committee, 26 June 2001; c 305.]

There is a need for political impartiality in domestic cases because otherwise the process could be subject to interference. If the amendments were agreed to, the functions that the bill would confer on the Lord Advocate could conflict with his existing role as head of prosecutions and investigator of deaths. Part 2 of the bill handles civil proceedings, which are outwith the usual responsibility of the Lord Advocate, who handles criminal proceedings. Therefore, there is a solid argument in favour of rejecting the amendments.

Photo of Bill Aitken Bill Aitken Conservative

Amendment 1 is important and it deals mainly with the separation of powers. It has to be understood that the role of Lord Advocate in Scotland is a special one and that it is possibly unique in the legal roles of prosecutors, certainly throughout Europe. It has to be remembered that the Lord Advocate is not a minister for the interior, which is the position that many jurisdictions have to fulfil, as envisaged in the statute. It is not a question of the Minister for Justice, whoever that might be in the future, having the ability to overrule the Lord Advocate. The Minister for Justice should not be involved in these matters because there is a dilution of the principle of independence.

I cannot understand Tavish Scott's apparent suggestion that there is a degree of conflict in what Lord James Douglas-Hamilton is proposing. Conflict is precisely what we are trying to avoid. We are trying to establish the principle that the Lord Advocate is totally and utterly independent from the Government.

It is possibly a natural consequence of devolution that the role of Lord Advocate has been politicised to some extent. That was inevitable, but definitely unfortunate. We are seeking to ensure that the important role of Lord Advocate retains a degree of independence. That is necessary for it to maintain the degree of respect that it has had historically. Even at this stage, we ask the Minister for Justice to re-examine the provision, which would in no way diminish the powers of the bill. We all hope that the bill will become an act. The amendments would be a step towards upholding the independence of the Scottish prosecution system.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I respect the spirit in which Lord James Douglas-Hamilton has lodged the amendments and in which Bill Aitken has spoken to them. I recognise the historic and important role of the Lord Advocate in the Scottish legal system, not least in the Scottish criminal justice system. In the exercise of my duties as the Minister for Justice I have done my utmost to scrupulously remember the important distinction of the Lord Advocate's role as the independent head of the systems of criminal justice prosecution and investigation of deaths in Scotland. Journalists sometimes cannot understand—no doubt to their frustration—why I will not comment on the reason why cases have not been prosecuted. It is not my responsibility nor should it be.

Against that background and that recognition of the importance of the Lord Advocate, I nevertheless believe that the amendments should be resisted. The subject was debated at stage 2 and the Deputy Minister for Justice said at that time that our view is that the amendments are not consistent with what was intended as regards the conferral of ministerial functions provided for in the Scotland Act 1998. If one considers the scheme of that act, post devolution all statutory functions should be conferred on Scottish ministers collectively, so that legally they can be exercised by any one of them. It is for the First Minister to decide which Scottish minister should exercise a particular function through the allocation of ministerial portfolios and responsibilities. The only exceptions to that are in the case of the First Minister and the Lord Advocate, upon whom statutory functions are conferred that may be legally exercised only by them.

As we observed, in the case of the Lord Advocate those functions are well known. They are the functions that he carried with him when he ceased to be a minister of the Crown in the UK Government and became a minister of the Scottish Executive. Before that occurred, the functions previously performed by the Lord Advocate, other than in relation to criminal prosecution and investigation of deaths in Scotland, were transferred to the Secretary of State for Scotland and thereafter to the Scottish ministers. We believe that it would be appropriate to confer new statutory functions on the Lord Advocate only when they relate to his position as head of the system of criminal prosecution and investigation of deaths in Scotland. Those are functions that he is required to operate independently of any other person. He cannot—nor should he—be directed as to how he exercises those functions.

However, the functions in part 2 of the bill that Lord James Douglas-Hamilton wants to provide as being exclusively carried out by the Lord Advocate do not relate to his position as head of the systems of criminal prosecution and investigation of deaths. Those functions fall into three categories.

First, there are functions that relate directly to fulfilling requests from the international criminal court for assistance. Those include section 13 on the taking and production of evidence; section 14 on further provisions on the taking and production of evidence; section 18 on the provision of records and documents; and section 21 on the verification of material. Those functions relate primarily to the implementation of our international obligations, not to the systems of criminal prosecution in Scotland. It is therefore appropriate that they are conferred upon Scottish ministers collectively.

Secondly, there are functions that relate to the taking of civil proceedings. Those include section 19 on the investigation of proceeds of ICC crime and section 20 on freezing orders in respect of property liable to forfeiture. In addition to being examples of Scottish ministers discharging obligations to provide assistance to the ICC, those functions operate in relation to civil matters. They do not relate to the system of criminal prosecution in Scotland.

Photo of Phil Gallie Phil Gallie Conservative

I ask the minister to clarify a point. He referred to the requirement to pass on documents to the ICC. In some circumstances, might those documents already be under the control of the Lord Advocate? What action would the minister take in those circumstances?

Photo of Jim Wallace Jim Wallace Liberal Democrat

By passing this legislation and the United Kingdom then ratifying the Rome statute, we will undertake international obligations. We would want to take action to be as fully compliant with those obligations as we can. The point is that those are civil proceedings in sections 19 and 20. They do not relate to the Lord Advocate's role as part of the criminal prosecution system in Scotland.

Photo of Annabel Goldie Annabel Goldie Conservative

Surely it is the case that what we have in part 2 is not a civil situation; what we have are preliminary activities that are the prelude to criminal prosecution. Is it not the case that to try to preserve a façade of ministerial involvement is merely to place a fig leaf over what will—and should—remain the fundamental and primary responsibility of the Lord Advocate?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I indicated that there are three categories. The first one, to which I have referred, is on fulfilling requests that come from the ICC. By their nature, those requests would be directed towards Scottish ministers. Those international obligations are appropriately discharged by Scottish ministers rather than by placing a specific duty on the Lord Advocate. Likewise, functions related to civil proceedings should be discharged by Scottish ministers.

The third category of functions include those in section 15 that direct the chief constable to serve a document or those in section 16 that direct the procurator fiscal to apply for a warrant.

I do not like to challenge amendments on the basis of technicalities or drafting. The points that I have argued relate to substance. However, if Lord James Douglas-Hamilton's amendment 31 to section 16 was to be accepted, a curious position would arise in which a different Scottish minister would have to make a request to the Lord Advocate. That is interesting because the concept of collective responsibility, which binds the Lord Advocate, would mean that he was being requested to do something that, by definition, he had already agreed to do. Where could he exercise a separate, independent judgment on those matters? That is a technical point, but it illustrates that those functions are appropriately conferred on Scottish ministers.

I accept that the directions to the chief constable or the procurator fiscal are similar to the functions that the Lord Advocate would carry out when dealing with prosecutions in Scotland. It is more than likely that—without in any way binding the First Minister—the First Minister would take that into account when deciding which minister would exercise these functions. However, it is far better to leave the position as being that, quite properly, in fulfilling our international obligations those functions are exercised by Scottish ministers, rather than putting it in the bill that the Lord Advocate would exercise them. I ask the chamber to reject Lord James Douglas-Hamilton's amendment.

Photo of Lord James Selkirk Lord James Selkirk Conservative

I have about 40 seconds to reply.

I say to the Deputy First Minister that the functions concerned are ancillary and related to criminal prosecution. Those have been the responsibility of the Lord Advocate in the past and, as far as I know, there has never been any problem with his discharge of those duties. We believe that this is a significant diminution of his role, which is unnecessary and regrettable. We wish to press amendment 1 to a vote.

Photo of Patricia Ferguson Patricia Ferguson Labour

The question is, that amendment 1 be agreed to. Are we agreed?



Division number 3

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McIntosh, Mrs Lyndsay, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Neil, Alex, Reid, Mr George, Robison, Shona, Russell, Michael, Scanlon, Mary, Scott, John, Sturgeon, Nicola, Tosh, Mr Murray, Ullrich, Kay, Wallace, Ben, Welsh, Mr Andrew, White, Ms Sandra
Against: Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Grant, Rhoda, Gray, Iain, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Abstentions: Brown, Robert, Gorrie, Donald

Photo of Patricia Ferguson Patricia Ferguson Labour

The result of the division is: For 43, Against 58, Abstentions 2.

Amendment 1 disagreed to.