Parliamentary Consideration

Details of Provisions

Paragraph 27 inserts new sections 288A and 288B into the 1995 Act. Subsection 288A(1) and 288A(2) provide that where the Advocate General has been a party to criminal proceedings in Scotland during which a devolution issue has been raised, she may refer that issue to the High Court after the criminal proceedings have concluded. Subsection 288A(2) also provides that notice of the appeal and the date of the hearing must be notified to the person acquitted or convicted in the case and his solicitor.

Subsection 288A (3) provides that the individual can elect to appear personally at the hearing or be represented by counsel.

Subsection 288A (4) provides that where the individual does not indicate that he will be represented then the court may appoint an amicus curiae (counsel to assist the court). This will help ensure that the relevant legal arguments are led before the court.

Subsection 288A(5) provides that counsel's costs will be paid by the Advocate General out of money provided by Parliament.

Subsection 288A(6) provides that the opinion of the court on the devolution issue shall not affect the acquittal or conviction.

Subsection 288A(7) makes it clear that "devolution issue" has the same meaning as in Schedule 6 to the Act. The meaning of "devolution issue" is set out in paragraphs 1 and 2 of Schedule 6.

Section 288B makes provision for the implementation by the High Court of Justiciary of any determination by the Judicial Committee of the Privy Council following an appeal on a devolution issue from the High Court. Under Schedule 6, paragraph 13 of the Bill, provision is made for an appeal against the determination of a devolution issue by the High Court of Justiciary to the Judicial Committee of the Privy Council. This deals with devolution issues raised in criminal proceedings.

The matter will be remitted to the High Court which is empowered to deal with the case as it would as if it were determining it as a fresh appeal. This would enable the High Court to decide in the light of the Judicial Committee's decision whether a conviction should be upheld or quashed and, if appropriate, a retrial ordered, and so on. The new section also makes it clear that the Judicial Committee's determination does not affect any earlier acquittal in the proceedings.

In the case of the criminal law the role of the Judicial Committee will be limited to determining devolution issues as a matter of law but it will be for the High Court to give effect to the determination in a particular case. In order to do this it needs all the powers it would have when sitting as an appeal court and this is what the amendment provides. In addition it ensures that where there has previously been an acquittal or a quashing of a conviction, these would not be affected by a Judicial Committee determination.

SCHEDULE 8, Paragraph 33: Defamation Act 1996

Purpose and Effect

This paragraph makes amendments to the Defamation Act 1996 which are consequential upon the establishment of the Scottish Parliament and the Scottish Executive to ensure that relevant provisions made by or under Acts of the Scottish Parliament and appointments made by members of the Scottish Executive are covered by the 1996 Act in the same way that equivalent provisions made by or under UK Acts or appointments by UK Ministers are covered.

General

The Defamation Act 1996 makes provision amending the law of defamation in each part of the United Kingdom. In particular sections 14 and 15 make provision as to the circumstances in which certain reports will enjoy absolute privilege and qualified privilege. These amendments ensure that the Act will apply taking account of provisions that may be made by or under Acts of the Scottish Parliament and appointments made by the Scottish Executive. It complements section 41 (Defamatory statements), paragraph 10 of Schedule 8 (Defamation Act 1952) and paragraph 11 of Schedule 8 (Defamation Act (Northern Ireland) 1955).

Details of Provisions

Paragraph 33(2) amends the definition in the 1996 Act of "statutory provision" for the purposes of the Act so that it includes provisions contained in an Act of the Scottish Parliament or in a Statutory Instrument made under any such Act. There are references in the 1996 Act to "statutory provision" in section 14(2) of the Act (reports of court proceedings absolutely privileged) and in paragraphs 11(c) to (e) and 13(2)(c) and (4)(b) of Schedule 1 which deal with statements which have qualified privileged under the Act subject to explanation or contradiction.

Paragraph 33(3) amends paragraph 11(1)(c) of Schedule 1 to the 1996 Act, which provides qualified privilege for certain reports of proceedings of a commission, tribunal, committee or person appointed for the purpose of any inquiry by Her Majesty or by a Minister of the Crown or a Northern Ireland Department, so that it also applies in relation to any such commission etc. appointed by a member of the Scottish Executive.

SCHEDULE 8, Paragraph 34: Damages Act 1996

Purpose and Effect

The Damages Act 1996 makes provision in relation to damages for personal injury, including provision for structured settlements. It also provides for Ministers of the Crown to guarantee payments for public sector settlements to be made by bodies which are designated in relation to their department by guidelines agreed between that department and the Treasury.

The amendment would enable the Scottish Ministers to designate bodies in relation to the Scottish Administration, without a requirement to follow guidelines agreed with the Treasury. Any liabilities arising from guarantees provided by the Scottish Ministers should fall on the Scottish Consolidated Fund.

General

The Damages Act 1996 makes provision in relation to damages for personal injury. This includes provision for structured settlements. A structured settlement is an agreement settling a claim or action for damages for personal injury on terms whereby:

(a)     the damages are to consist wholly or partly of periodical payments; and

(b)     (in effect) the person against whom a claim is made has purchased an annuity (or annuities) which would enable all or part of the sum to be paid in periodical payments by him (or his insurer).

The claimant (as the annuitant) would receive periodical payments for life, for a specified period or for a specified number of payments. A court may make an order awarding damages for personal injury which incorporates such terms.

Section 6 of the 1996 Act provides for guarantees for public sector settlements.

Where payments are to be made by a body in relation to which a Minister of the Crown has power to do so, under the provisions of section 6(2) the Minister of the Crown may guarantee the payments to be made under the agreement or court order.

Section 6(3) of the 1996 Act provides that bodies in relation to which a Minister may give such a guarantee are such bodies as are designated in relation to the relevant government department by guidelines agreed between that department and the Treasury.

The function of guaranteeing public sector settlements under section 6(2) of the 1996 Act will transfer to the Scottish Ministers under section 53 insofar as these guarantees concern designated Scottish public authorities with mixed functions or no reserved functions.

It is intended that the Scottish Ministers will designate the bodies and, since any liabilities arising from guarantees provided by the Scottish Ministers should fall on the Scottish Consolidated Fund, the requirement to agree guidelines for the designations with the Treasury is not considered necessary.

The amendment therefore makes it clear that it is for the Scottish Ministers to designate bodies without the requirement for Treasury consent.

Parliamentary Consideration

SCHEDULE 9: Repeals

Purpose and Effect

This Schedule lists the legislation which is repealed to the extent set out in the third column.

Parliamentary Consideration

Details of Provisions

Sheriff Courts and Legal Officers (Scotland) Act 1927. This repeal is related to paragraph 3 of Schedule 8;

Administration of Justice (Scotland) Act 1933. This repeal is related to paragraph 4 of Schedule 8;

House of Commons Disqualification Act 1975. This repeal is related to section 48(6);

Ministerial and other Salaries Act 1975. This repeal is related to section 48(6);

Education (Scotland) Act 1980. This repeal is related to paragraph 17 of Schedule 8;

Tourism (Overseas Promotion) (Scotland) Act 1984. This repeal is related to paragraph 21 of Schedule 8;

Parliamentary Constituencies Act 1986. This repeal is related to section 86(2); and

Prisons (Scotland) Act 1989. This repeal is related to paragraph 27 of Schedule 8.