"Compatibility issues" review consults on Scotland Act provisions

A review of the practice and procedure relating to "compatibility issues" arising in criminal proceedings in Scotland and appeals to the UK Supreme Court is being carried out, chaired by the Lord Justice General on the invitation of the Secretary of State for Scotland.

A group, which began work in June 2017, is undertaking the review required by s 38 of the Scotland Act 2012 of the working of ss 34 of 37 of the Act. A consultation has now been launched to inform the work of the group.

Sections 34 to 37 made a number of significant changes to criminal procedure in Scotland, including the introduction of compatibility issues and changes to the right of appeal to the UK Supreme Court. Compatibility issues raise the question, in criminal proceedings, of whether a public authority has acted unlawfully under the Human Rights Act, or in a way which is incompatible with EU law; or whether an Act of the Scottish Parliament is incompatible with the European Convention on Human Rights or EU law.

Other members of the review group are the Lord Justice Clerk, Lady Dorrian; Lord Reed, Justice of the UK Supreme Court; David Harvie, Crown Agent; Roddy Dunlop QC; and John Scott QC. 

It is considering the extent to which any changes should be made to ss 34 to 37 or any further provision made on the matters covered by those sections, and in particular whether an appeal to the UK Supreme Court on a compatibility issue should only be possible if the High Court of Justiciary first certifies that the issue raises a point of law of general public importance.

The paper explains how compatibility issues came to take the place of devolution issues as a means of challenging acts or omissions by or in the name of the Lord Advocate in prosecuting offences. It also reveals that since the new law came in, only one case has been granted leave to appeal to the Supreme Court, either by the High Court or the Supreme Court (two further applications are pending). It explores the question of whether there should be separate procedures for compatibility and devolution issues, and what aspects of each procedure are advantageous.

The overarching questions for consideration are:

• Should certification by the High Court be necessary?
• Should challenges to legislation be a compatibility issue or a devolution issue?
• Is a specialised procedure necessary or desirable for all compatibility issues?
• Should appeals from decisions to refuse leave at sift and refusals of leave to appeal from the Sheriff Appeal Court be permitted?
• Are the current appeal time limits sufficient?

Click here to view the consultation paper. Responses are invited by 9 April 2018.