Chamber and committees

The Scottish Executive received from Midlothian Council an outline business case for upgrading of the A701 as part of developing a PFI specification for the project. The outline business case includes a quantified cost benefit analysis, an assessment of the upgrading options and outline costs for the project.

Following the Comprehensive Spending Review in 1998, provision was made for the Crown Office, the Legal Aid Fund and the Scottish Courts Service to take account of the cost of ECHR issues arising in criminal and civil proceedings under the Scotland Act and the Human Rights Act. The total provision which was made for these services principally in respect of the ECHR was £6.5 million in 1999-2000; £10.6 million in 2000-01; and £8.9 million in 2001-02.

There are currently 41 part heard trials before temporary Sheriffs and 36 continued civil cases. Procurators fiscal will invite temporary Sheriffs to discharge diets and fix a date for a permanent Sheriff to hear the criminal cases. With regard to civil cases temporary Sheriffs will seek the agreement of parties as to whether they should continue to hear each case.

The Lord Advocate's directions to the police and Procurators Fiscal in relation to applications for search warrants restated, with some modifications, the longstanding general policy of the Crown in this regard.

A review, instructed by the Lord Advocate in 1998, disclosed that the policy was not being uniformly observed. The Lord Advocate's directions seek to ensure consistency in the manner in which applications for search warrants are processed across the country and to limit the risk of important evidence being excluded.

It is unknown whether compliance with the Lord Advocate's directions will take up more police time in those parts of the country in which the directions will involve a change in the practice of the police. A joint working group, comprising representatives of Crown Office and the Procurator Fiscal Service and the Association of Chief Police Officers in Scotland, has been set up to monitor the operation of and compliance with the Lord Advocate's directions, as well as identifying improvements to procedures.The Lord Advocate will carefully consider any available information in relation to the implementation of his directions and will take such action as appears to be appropriate in the light of such information.

With regard to criminal trials, standing the decision in Starrs, the Lord Advocate has decided that cases will not be prosecuted before temporary Judges. I understand that the Lord President has decided that no new civil cases will be allocated to temporary Judges meantime. There are no adjourned trials before a temporary Judge. Four criminal cases require to be called before temporary Judges for sentence. One temporary Judge is engaged in three civil cases, in two of which the parties have agreed that he should continue to hear the case. In the third civil case the question of whether the temporary Judge should continue to deal with the matter remains before the court for consideration.

Temporary Sheriffs have been deployed wherever required to cover for the absence of permanent Sheriffs or where exceptional caseloads have had to be dealt with. It follows that some courts have made more use than others of temporary Sheriffs. The Sheriffs Principal and Sheriff Court staff have already taken steps to re-schedule business and provide permanent Sheriff cover for courts with greatest need.

I shall make a further statement on this matter once we have considered the judgements issued by the High Court on 11 November and a decision has been taken on the question of an Appeal to the Judicial Committee of the Privy Council.

On average temporary Sheriffs have provided between 20% and 25% of the sitting days in the Sheriff Courts. The use of temporary Sheriffs for new business has been suspended whilst Ministers consider the implications of the judgements issued by the High Court on 11 November. The appointment of 10 new floating Sheriffs will compensate to some extent for the loss of the services of temporary Sheriffs. Ministers will consider the case for further appointments after a decision has been taken whether or not to appeal against the High Court ruling and in the light of further experience of the measures already taken.

Section 57 of the Scotland Act provides that members of the Scottish Executive have no power to make any subordinate legislation or to do any other act so far as the legislation or act is incompatible with the rights and freedoms set out in the European Convention of Human Rights (the Convention rights). In addition, section 29 of the Scotland Act provides that an Act of the Scottish Parliament is not law so far as any provision of it is incompatible with any of the Convention rights.

It follows that if a court finds that a member of the Executive has acted in a way which is incompatible with any of the Convention rights, it may strike down the action in question as ultra vires and of no effect. It also follows that an Act of the Scottish Parliament would not be law so far as any provision of it was found by a court to be incompatible with any of the Convention Rights.Under section 102 of the Scotland Act, if a court decides that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament or that a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve, the court has power to make an order removing or limiting any retrospective effect of the decision or suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected.

Anyone imprisoned following conviction by a temporary sheriff is detained under a valid warrant and must continue to be detained in the absence of a successful appeal against conviction. It is, of course, for the Appeal Court to determine the outcome of any such appeals. Information is not readily available on the percentage of convicted offenders dealt with by temporary sheriffs.