SCOTTISH LAW COMMISSION (Hansard, 13 October 1976)

§ 31. Mr. Fairbairn
asked the Lord Advocate when he next expects to meet the Scottish Law Commission.

§ The Lord Advocate (Mr. Ronald King Murray)
I had a meeting with the Scottish Law Commission on 14th June last. 423 I have not made any arrangement of a formal nature to have a further meeting with the Commission. There is, of course, a constant exchange of views and information between the Commission and my departments.

§ Mr. Fairbairn
When the right hon. and learned Gentleman meets the Scottish Law Commission, will he ensure that the excellent principle of the 110-day rule is neither interfered with nor watered down, nor in any way given the blame for the disreputable and incompetent prosecution of what is colloquially called the Tartan Army case, the blame for which rests entirely with the Department for which he is responsible? Will the right hon. and learned Gentleman offer his resignation as an indication of that incompetence?

§ The Lord Advocate
I always enjoy listening to the hon. and learned Gentleman when he is waxing indignant. The answer to the last point is that I shall not resign.
The case to which the hon. and learned Gentleman has referred, while not technically covered by the sub judice rule, is nevertheless one in which the time for appeal has not expired. In those circumstances, it is highly desirable that I, as the public prosecutor, should refrain from making any comments on the merits of the case.
Accordingly, what I should say about this matter is to mention the 110-day rule to which the hon. and learned Gentleman referred. Procedural difficulties arise for the Crown. They arise out of the operation of the 110-day rule in a situation where justice required the prevention of unfairness to the last three accused to be arrested. Injustice could have arisen if the two accused who were arrested before had been tried before the others in a separate trial. I am sure that that was a proper view to take.
Those difficulties reinforce the case for the implementation of the reform proposed by the Thomson Committee, namely, that the 110-day period ought to run from the date of full committal to commencement of the trial and not to the conclusion of the trial, as the rule now requires. The hon. and learned Gentleman will see from this answer that I am not as enamoured of the 110-day rule as it stands as he appears to be.

§ Mr. Robin F. Cook
Can my right hon. and learned Friend say what pressure he received from the Scottish Law Commission for a consolidation Bill on sexual offences? Does he believe that it would be wise for the House to re-enact the potpourri of nineteenth century legislation without first having an opportunity to consider whether that legislation requires reform?

§ The Lord Advocate
My hon. Friend will appreciate that legislative time is at a high premium during the present sittings of Parliament, and it is difficult to get time in all Parliaments for matters of law consolidation. For those reasons, this small measure is a useful contribution to the consolidation of the law. I can understand that people who have strong feelings about certain aspects of the law therein dealt with may wish to take the opportunity when such a Bill is before the House to air their desire for changes in the substantive law, but such changes are not the proper subject of a consolidation Bill and they do not fall within my jurisdiction as Lord Advocate.

§ Lord James Douglas-Hamilton
Can the Lord Advocate say when he will bring proposals before the House arising out of the Thomson Committee, which I understand reported some months ago?

§ The Lord Advocate
My right hon. Friend the Secretary of State for Scotland and I have a committee working on this subject. As soon as that committee reports, we hope to have proposals to put before the House in this regard.

§ Mr. Rifkind
Reverting to the question asked by the hon. Member for Edinburgh, Central (Mr. Cook), may I ask whether the Lord Advocate realises that in asking Parliament to approve this consolidation Bill he will be asking Parliament to approve one clause of it that will retain as a criminal offence conduct which the Crown, by his own person, said will not be subject to prosecution, despite its being a criminal offence? Will he accept that it is contrary to public interest that Parliament should be asked in 1976 to approve laws which the Government and he himself have no intention of enforcing?

§ The Lord Advocate
The hon. Gentleman, with his legal qualifications, will appreciate that what he has put to me is grossly over-simplified. I content myself 425 with saying that for 60 years the Crown Office has adopted a humane and reasonable policy of prosecution in connection with the matter that he has in mind. If people feel that that is not enough and that the substantive law ought to be changed, the hon. Gentleman knows as well as I do that the proper way is not by a consolidation Bill, which has totally different objectives, but by trying to introduce a Private Member's Bill, which can be properly considered by both Houses of Parliament in a context that will allow all moral views to be considered properly.

§ Mr. David Steel
Surely it is one thing for the Crown Office to base its policy on an antiquated statute of the last century but quite another thing to update the law in a consolidation measure and thereby reinforce a policy which his Department has ceased to implement. It is that to which we are objecting.

§ The Lord Advocate
I take note of what the hon. Gentleman has fairly said, but I reiterate what I said to the hon. Member for Edinburgh, Pentlands (Mr. Rifkind). The matter is not as simple as the hon. Gentleman has put to me. If it were as simple as he suggests, it would be attractive.