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The Advocate Depute contended that the Minute was premature, and in any event unnecessary to protect Mrs Burns' convention rights on a proper interpretation of the 1995 Act.
The provisions of the Human Rights Act 1998 empowering the court to adjudicate on the compatibility of legislation of the United Kingdom Parliament with the Convention are not in force. Some of the discussion appeared to anticipate those powers and cannot be commented on. But it is necessary in any event to consider the Advocate Depute's analysis of the 1995 Act.
In outlining the facts, Mr Devlin said that Mrs Burns and the accused separated in 1992, and that they were divorced following contested proceedings on 12 December 1995. Mrs Burns lived at the house in Kirkcaldy alone. The accused did not live there. These factual observations were not accepted by the Crown without qualification. But they represented the Minuter's position. The Advocate Depute intimated that it was the Crown's understanding that Mr Burns and the children of the family lived in the Minuter's home. It is impossible to resolve the factual differences at this stage.
The Crown's central position, however, was that nothing had happened which could constitute an act of the Lord Advocate for the purposes of the Scotland Act.
It is also important to define the context in which that issue has to be considered. In Montgomery v H. M. Advocate , unreported, 16 November 1999, in relation to Article 6(1), the Lord Justice General said:
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