§ Section 36
§ 1. Sections 141 A, 141B, 346A and 346B of the Criminal Procedure (Scotland) Act 1975 do not apply in relation to a trial which has commenced before the coming into force of those sections; and, for the purposes of this paragaph, a trial shall be taken to commence—
- (a) in the case of solemn proceedings, when the oath is administered to the jury;
- (b) in the case of summary proceedings, when the first witness is sworn.
§ Section 38
§ 2. The amendment to section 120 of the Road Traffic Regulation Act 1984 effected by section 38 of this Act has no effect in relation to proceedings in which the complaint was served on the accused before the coming into force of section 38 of this Act.
§ Section 39
§ 3. Section 193B of the Criminal Procedure (Scotland) Act 1975 shall not affect the punishment for an offence committed before the coming into force of section 39 of this Act.
§ 4. The amendments to section 407(1A) of the Criminal Procedure (Scotland) Act 1975 effected by section 40 of this Act have no effect in relation to fines imposed in respect of offences committed before the coming into force of section 40 of this Act.").
519§ Clauses 36 and 38 of the Bill change the rules on admissibility of evidence in court proceedings for sexual offences and also for vehicle licensing offences, while Clauses 39 and 40 change the penalties which can be imposed for an offence in certain circumstances. Clearly it would be unacceptable for the rules of evidence to be changed during the course of a trial. Equally it would be unjust, and contrary to Article 7 of the European Convention on Human Rights, if the penalty for an offence could be retrospectively increased or an additional penalty imposed. The new schedule of transitional provisions therefore provides that Clause 36 shall not apply to trials, and Clause 38 shall not apply to proceedings commenced before they come into force. Similarly Clauses 39 and 40 cannot change penalties for offences committed before they came into force. The new schedule is governed by Clause 60, and as a consequential to the new schedule the existing transitional provision in Clause 40(2) is deleted.
§ On Question, amendment agreed to.
§ Clause 44 [Functions of Parole Board for Scotland and local review committees in relation to children detained on conviction on indictment]:
The Deputy SpeakerMy Lords, I should explain before calling Amendment No. 24 that there is a small misprint. It should read "Page 35, line 23", not "line 12".
§
Lord Cameron of Lochbroom moved Amendment No. 24:
Page 35, line 23, leave out from ("words") to the end of the line and insert (" "section 12 of the Criminal Justice (Scotland) Act 1963 or section 206 or 206A of the Criminal Procedure (Scotland) Act 1975" ").
§
The noble and learned Lord said: My Lords, again for convenience and by leave of the House I wish to speak to this amendment along with the subsequent amendments, including Amendment No. 29.
Amendment No. 25: Page 35, line 14, leave out from ("(c)") to end of line 15 and insert ("for the word "applies" there shall be substituted the words "or the said section 206 applies or the recall of persons to whom the said section 12 or the said section 206A applies." ").
Amendment No. 26: Page 35, line 22, leave out from ("words") to end of line 24 and insert (", section 12 of the Criminal Justice (Scotland) Act 1963 or section 206 or 206A of the Criminal Procedure (Scotland) Act 1975" ").
Amendment No. 27: Clause 45, page 36, line 8, after ("terms") insert ("and either—
Amendment No. 28: Page 36, line 11, at end insert—
("( ) The Secretary of State shall inform a person recalled under subsection (5) above of the reasons for his recall, so that the person may make representations in writing with respect to his recall to the Parole Board for Scotland; and the Board may, on receipt of such representations, require the Secretary of State to release him forthwith.").
Amendment No. 29: Page 36, line 23, at end insert—
("(2) In section 12 of the Criminal Justice (Scotland) Act 1963 (supervision of persons released from young offenders' institution)—
§ My Lords, these amendments relate to an issue which was raised in earlier proceedings by the noble Lord, Lord Morton of Shuna, and to which he has returned in an amendment tabled in his name in the present Marshalled List. His principal concern was that as Clause 45 presently stands it gives no right of appeal to a child who is recalled by the Secretary of State under subsection (5), that is, at the completion of his sentence. I did, I think, my best to persuade him during the Committee deliberations that the proposal under subsection (5) was not a constitutional novelty but simply sought to place the supervision arrangements for children released at the end of their sentence on the same basis as those for young offenders under Section 12 of the Criminal Justice (Scotland) Act 1963.
§ I think it is fair to say that the noble Lord in withdrawing his amendment expressed the hope that the Government might come up with something better. I have considered the question very carefully and have taken account of what the noble Lord said. I think that what we now propose is in fact better.
§ What we seek to do by these amendments is formally to involve the Parole Board for Scotland in the recall procedure for children who have been released on supervision at the end of their sentence. Of course, the board is already involved in those cases where release occurs before the end of the sentence. These amendments provide for the board similarly to be involved in the case of children released at the end of sentence. The Secretary of State will thus recall children who have broken their supervision conditions only on the recommendation of the board, or where he believes the public interest requires recall before it is practical to consult the board. He must give reasons for the recall and the person recalled can make representations to the board. The board will have power, on receiving such representations, to order the Secretary of State to release the child immediately.
§ If we provide these safeguards for children released subject to supervision, I believe it is only fair and consistent to provide similar safeguards for young offenders released under supervision under Section 12 of the Criminal Justice (Scotland) Act 1963. Therefore, the amendments provide for the board to 'be similarly involved in the procedure for the recall of these young offenders. I should add that the board already has similar functions under Section 62 of the Criminal Justice Act 1967 in relation to the recall of prisoners or young offenders released on licence. 521 Therefore, these amendments are applying well established machinery and ensuring consistency of procedure.
§ The procedures we propose do not involve appeal to a court as does the amendment by the noble Lord, Lord Morton of Shuna. The view which is taken is that the flexible nature of the supervision and recall arrangements make the involvement of the courts inappropriate. However, the amendment will ensure that, save in exceptional circumstances, an individual will be recalled only on the recommendation of the Parole Board, and in the event of any recall the individual will have the right to make representations to the board, and that the board will have the power to require the Secretary of State to release that individual. Thus, there is an effective appeal to an independent body.
§ I should say that the Parole Board have been consulted about these amendments. They have no objection to what is proposed; on the contrary, the members of the board welcome the prospect of their involvement in these arrangements and consider them to be perfectly logical. There is, I believe, agreement on all sides that the supervision of the young is a valuable instrument in helping them to pick up the threads of their lives when released from custody and, hopefully, in keeping them from further trouble.
§ The amendments before the House provide significant safeguards against arbitrary recall of those under supervision and recourse to a third party which is empowered to require the Secretary of State to release the individual concerned.
§ I am grateful to all noble Lords who spoke on this matter, in particular to the noble Lord, Lord Morton of Shuna, for raising the point, and I commend these amendments to your Lordships.
§ Lord Morton of ShunaMy Lords, I am afraid I am getting repetitive, but perhaps your Lordships will not object to my thanking the noble and learned Lord the Lord Advocate yet again. I welcome the Government's change of heart. At the Committee stage, my amendment was directed particularly to the question that it seemed to me wrong that the Secretary of State would be entitled to order someone to be put into detention, and that that child would have no recourse to anybody and no method of challenging the exercise of that power. The amendments that the noble and learned Lord has proposed certainly improve the amendment I had suggested, and go further, and I welcome them wholly. I also accept it is much more suitable that it is the Parole Board which has the supervisory power, rather than that a court should do so.
§ On Question, amendment agreed to.
§ Lord Cameron of Lochbroom moved Amendment No. 25:
§ [Printed earlier: col. 519.]
§ On Question, amendment agreed to.
§
Following is the text of the amendment (No. 25):
Page 35, line 14, leave out from ("(c)") to end of line 15 and insert ("for the word "applies" there shall be substituted the words "or the said section 206 applies or the recall of persons to whom the said section 12 or the said section 206A applies." ")
§ Lord Cameron of Lochbroom moved Amendment No. 26:
§ [Printed earlier: col. 519.]
§ The noble and learned Lord said: My Lords, I think I spoke to this amendment, and to Amendments Nos. 27, 28 and 29 under Amendment No. 24. By leave of the House, perhaps I might move en bloc Amendments Nos. 26 to 29 inclusive.
§ On Question, amendments agreed to.
§
Following is the text of the amendments (Nos. 26, 27, 28 and 29):
Page 35, line 22, leave out from ("words") to end of line 24 and insert (", section 12 of the Criminal Justice (Scotland) Act ! 963 or section 206 or 206A of the Criminal Procedure (Scotland) Act 1975" ").
Page 36, line 8, after ("terms") insert ("and either—
Page 36, line 11, at end insert—
("( )The Secretary of State shall inform a person recalled under subsection (5) above of the reasons for his recall, so that the person may make representations in writing with respect to his recall to the Parole Board for Scotland; and the Board may, on receipt of such representations, require the Secretary of State to release him forthwith.").
Page 36, line 23, at end insert—
("(2) In section 12 of the Criminal Justice (Scotland) Act 1963 (supervision of persons released from young offenders' institution)—
(a) in subsection (7) after the word "above", where first occurring, there shall be inserted ("and either—
(b) after that subsection there shall be inserted the following subsection—
(7A) The Secretary of State shall inform a person recalled under subsection (7) above of the reasons for his recall, so that the person may make representations in writing with respect to his recall to the Parole Board for Scotland; and the Board may, on receipt of such representations, require the Secretary of State to release him forthwith."; and
(c) in subsection (9)—
§ [Amendment No. 30 not moved.]
§ Lord Morton of Shuna had given notice of his intention to move Amendment No. 31:
§
After Clause 54, insert the following new clause:
("Scottish Special Housing Association and Neu Town Development Corporation.
.—(1) The Local Government (Scotland) Act 1975 shall be amended in accordance with the following provisions of this section.
(2) In section 23(1) of that Act (authorities subject to investigation) there shall be inserted the words—
(3) In section 24 of that Act (matters subject to investigation)—
(a) at the end of subsection (1) there shall be inserted the words—
Provided that in respect of the Scottish Special Housing Association or a New Town Development Corporation the Commissioner may not investigate any complaint which does not relate to housing.";
(b) at the end of subsection (2) there shall be inserted the words—
(c) notwithstanding the terms of paragraphs (a) and (b) above in the case of the Scottish Special Housing
523
Association or a New Town Development Corporation it is made in writing to the Scottish Special Housing Association or the New Town Development Corporation concerned and is referred by that body to the Commissioner with a request to investigate the complaint."; and
(c) in subsection (4) after the word "concerned" there shall be inserted the words "or in the case of the Scottish Special Housing Association or a New Town Development Corporation to that body".").
§ The noble Lord said: My Lords, in the confident hope that the noble and learned Lord the Lord Advocate is going to move Amendment No. 33,I shall not move this one.
§ [Amendment No. 31 not moved.]
§ Clause 55 [Amendments of certain controls in relation to the provisions of pharmaceutical services]:
§ Lord Cameron of Lochbroom moved Amendment No. 32:
§ Page 40, leave out from beginning of line 22 to ("persons") in line 29 and insert—
§ ("55.—(1) Section 27 of the National Health Service (Scotland) Act 1978 shall be amended in accordance with subsections (2) and (3) below.
§ (2) In subsection (2) of that section (which, amongst other things, provides as to the lists of persons who undertake to provide pharmaceutical services)—
- (a) in paragraph (a), there shall be inserted at the end the words "and the premises in or from which these services are to be provided";
- (b) in paragraph (b) —
- (i) after the words "subject to" there shall be inserted the words "any provision made by or under the regulations, to";
- (ii) after the word "practitioners" there shall be inserted the words "and to subsection (3)";
- (iii) after the word "list" there shall be inserted the words "in respect of any premises"; and
- (iv) after the word "supplying" there shall be inserted the words "in or from the premises";
- (c)in paragraph (c), after the word "that", where first occurring, there shall be inserted the words ", in or from such premises,".
§
(3) After the said subsection (2) there shall be inserted the following subsections—
(3) Regulations may make the right referred to in subsection (2)(b) subject to the pharmacy practices committee's being satisfied that the provision of pharmaceutical services in or from the premises in respect of which a person wishes his name included in the list is necessary or desirable for securing adequate provision of such services in the locality of these premises.
(4) Regulations shall provide as to appeal from decisions of the pharmacy practices committee.
(5) The "pharmacy practices committee" referred to in subsections (3) and (4) is a committee of the Board which shall be constituted in accordance with regulations.".
(4) In section 28 of that Act.").
§ The noble and learned Lord said: In Committee I indicated that Clause 55 would bring Sections 27 and 28 of the National Health Service (Scotland) Act into line with the corresponding legislation to that which had applied in England and Wales since 1980, thereby providing the Secretary of State for Scotland with the power to make regulations which included provisions modifying health boards' obligations to admit to their pharmaceutical lists every qualified person who applied for admission and the premises from which the services were to be supplied.
§ In Scotland, as in England and Wales, the Government have reached substantial agreement with 524 the representatives of the profession on a new contract for community pharmacists dispensing National Health Service prescriptions, but progress towards implementing the proposals cannot be completed until regulations are available authorising restriction on entry to health board pharmaceutical lists. Section 27 of the National Health Service (Scotland) Act, as amended by Clause 55, is intended to provide the means for making regulations containing the necessary provisions.
§ Very recent consideration of the detailed legal position in England and Wales has indicated that the aspects of the new contract proposals relating to restrictions on entry to pharmaceutical lists to provide services could not be implemented without setting out more fully in primary legislation the powers to make such regulations. I consider it appropriate that, by means of this amendment, provisions should now be incorporated in the National Health Service (Scotland) Act 1978 to enable further progress to be made on the introduction of the new contract proposals for community pharmacists in Scotland.
§ The provisions now sought do not differ in principle from those which Clause 55, as originally drafted, sought to achieve. The amendment to Section 27 does not in itself alter the right of a pharmacist to be included in a health board pharmaceutical list and thereby enter into a contract with the National Health Service. The amendment gives the Secretary of State the power to make regulations which will regulate entry to a pharmaceutical list in certain circumstances. Regulations may make the right of a person to have his name and premises included in a health board's pharmaceutical list—in effect, a right to an NHS dispensing contract—subject to the board's pharmacy practice committee being satisfied that the granting of an application for inclusion in the list is necessary or desirable from the point of view of securing adequate provision of pharmaceutical services to the NHS in the locality of the proposed pharmacy in respect of which application is made. Clause 55(3) therefore provides for the establishment of pharmacy practices committees as committees of the health boards, for the pharmacy practices committees considering applications for inclusion in boards' pharmaceutical lists and for an appeals procedure in relation to decisions reached by the pharmacy practices committee.
§ Consideration is being given to the necessary detailed arrangements to give effect to the proposed new contract procedures for community pharmacists in Scotland. Aspects of these arrangements will require to be reflected in regulations, including regulations made in accordance with the provisions now sought in Clause 55. Any regulations will be laid before Parliament and will be subject to annulment in pursuance of a resolution of either House.
§ In these circumstances, particularly since the Government attach importance to the new contract arrangements and since they will not only help the control of costs in the National Health Service dispensing service but will also help to ensure that additional pharmaceutical services are provided where they are necessary or desirable for the needs of patient care, I commend the amendment to your Lordships. I beg to move.
§ On Question, amendment agreed to.
525§ 6.15 p.m.
§ Lord Cameron of Lochbroom moved Amendment No. 33:
§ After Clause 55, insert the following new clause:
§ ("Power of Commissioner for Local Administration to investigate Scottish Special Housing Association and new town development corporations.
§ —(1) In section 23 of the Local Government (Scotland) Act 1975 (authorities subject to investigation)—
- (a) in subsection (1) there shall be added at the end the words—
- "(g) the Scottish Special Housing Association;
- (h) subject to subsection (2A) below, any development corporation established under an order made, or having effect as if made under the New Towns (Scotland) Act 1968 (in this section and section 24 of this Act referred to as a "new town development corporation");"; and
- (b) after subsection (2) there shall be added the following subsection—
- "(2A) The application of this Part of this Act to any new town development corporation by virtue of subsection (1)(h) above extends only to the Corporation's functions in relation to housing.".
§ (2) In section 24 of that Act (matters subject to investigation)—
- (a) after subsection (3) there shall be inserted the following subsection—
- "(3A) Subsections (2) and (3) above do not apply in relation to the Scottish Special Housing Association or a new town development corporation."; and
- (b) in subsection (4) after the word "concerned" there shall be inserted the words "or, in the case of the Scottish Special Housing Association or a new town development corporation, to the Commissioner".").
§ The noble and learned Lord said: My Lords, I do not propose to speak at any length on this amendment since the matter was comprehensively discussed at an earlier stage. I promised to bring forward, if I could, an alternative to the new clause then moved by the noble Lord, Lord Morton of Shuna. The difference between that amendment and the present one in my name, apart from matters of drafting, is that originally the amendment proposed by the noble Lord involved the referral of complaints to the commissioner by the body complained against, whereas the present amendment allows complaints to be made direct to the commissioner. I should say that the commissioner himself is in favour of direct access and I believe this would generally be regarded as an improvement on what was originally before the House. With my consideration of the noble Lord's amendment I commend my amendment to your Lordships' House. I beg to move.
§ Lord Morton of ShunaMy Lords, yet again I thank the noble and learned Lord the Lord Advocate for taking on board my amendment and making the wording of it more appropriate. Considering that it was given as an undertaking by the Secretary of State some years ago it seems strange that it has taken until the Report stage in this House before it has come forward. Nonetheless, it is welcome for all that.
§ Lord KirkhillMy Lords, I want merely to say that I too welcome the new amendment brought forward today by the noble and learned Lord the Lord Advocate. I express my support for the remarks just made by my noble friend Lord Morton of Shuna. As I said at an earlier stage in our deliberations, I think it is important that this significant change to the Bill should be made; and speaking personally I am pleased 526 that the noble and learned Lord the Lord Advocate has taken the numerous points on board.
§ On Question, amendment agreed to.
§ Clause 56 [Amendment of enactments relating to solicitors]:
§
Lord Cameron of Lochbroom moved Amendment No. 34:
Leave out Clause 56 and insert the following new clause
§ ("Amendment of enactments relating to solicitors.
§ 56. The enactments specified in Schedule I to this Act (Part I of which Schedule contains amendments relating to the incorporation of solicitors' practices and Part II amendments relating to other matters relating to solicitors) shall have effect subject to the amendments to these enactments there set out.".).
§ The noble and learned Lord said: My Lords, it would be for the convenience of the House if I speak also to Amendments Nos. 36, 37 and 41.
§ Amendment No. 36: Schedule 1, page 43, line 2, at end insert—