Tag: so far as the Convention rights are concerned it will be within competence.  The obligation to construe a provision in an Act of the Scottish Parliament so far as it is possible to do so in a way

READING DOWN ASPs: DS v HM ADVOCATE

Scots Law News is grateful to Alan Trench of the Constitution Unit for drawing our attention to the Privy Council judgement in DS v HM Advocate [2007] UKPC D1, 2007 SCCR 222 (for Alan’s own comments see the Unit’s Scotland Devolution Monitoring Reports, Disputes and Litigation, http://www.ucl.ac.uk/constitution-unit/research/devolution/devo-monitoring-programme.html).  As usual with the Privy Council, the case concerned the compatibility of Scottish criminal law and procedure with the European Convention on Human Rights (ECHR).  What was more unusual about the case is that the legislation involved was passed at Holyrood (rather than pre-devolution Westminster legislation), and it therefore raised the constitutional issue of how judges should approach such statutes, given the limited authority of the Parliament.  The legislation, the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, allows evidence about the accused’s character and conduct to be introduced if the accused seeks to question the complainer about his or her sexual behaviour (see also previously No 203).  The question was whether this was compatible with the right to a fair trial under Article 6 ECHR.  The Judicial Committee found unanimously that the provisions in question were Convention-compliant.  The case includes the first major discussion seen by Scots Law News about the application of section 101 of the Scotland Act 1998 (paras 19-24 of the judgment), which requires Acts of the Scottish Parliament to be interpreted as narrowly as required to bring them within legislative competence, and its relation to section 3 of the Human Rights Act 1998 which requires all legislation to be interpreted as far as possible to be Convention-compliant.  Lord Hope (with whom Lord Rodger and the rest of the court agree) notes:

The word ‘narrowly’ … looks awkward in a case where the question is whether a provision in an Act of the Scottish Parliament is incompatible with Convention rights.  Where incompatibility with the Convention rights is in issue