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Lord Mackay of Drumadoon moved Amendment No. 253:

Page 18, line 25, at end insert ("made in good faith").

The noble and learned Lord said: This amendment has already been spoken to. I suggest to the noble and learned Lord the Lord Advocate that, as the noble Lord, Lord Williams of Mostyn, has today been promoted, it would be churlish to spoil his happy day through conveying the comments of the noble Lord, Lord Thomas of Gresford, to him.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 agreed to.

Clause 40 [Calculating time for meeting of the Parliament]:

[Amendment No. 253A not moved.]

Clause 40 agreed to.

Clause 41 [The Scottish Executive]:

[Amendments Nos. 254 and 255 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 255A:

Page 19, leave out lines 2 and 3 and insert--
("(1A) Neither a Scottish Law Officer nor a Law Officer of the United Kingdom may be a member of the Scottish Executive").

The noble and learned Lord said: This is one of a series of amendments which deal with the position of the Scottish Law Officers. Although later we turn to the question of whether the post of the Lord Advocate should be devolved, the amendments apply irrespective of the outcome of that discussion.

Amendment No. 255A seeks to provide that neither a Scottish Law Officer nor a Law Officer of the United Kingdom may be a member of the Scottish executive. Amendment No. 257B seeks to amend Clause 48 on page 22 at line 2 by inserting the words,

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Amendments Nos. 271R and 271S are of a fairly consequential nature.

The real issue is to seek to establish that the Scottish Law Officers should be independent of the Scottish executive and also independent of the United Kingdom Government. As the Committee will be aware, the Law Officers of the UK Government have separate departments. The Attorney-General and Solicitor-General are Ministers in the Law Officers' Departments in London and the Lord Advocate and Solicitor-General for Scotland are Ministers in the Lord Advocate's Department, which has offices in Edinburgh and London.

While the Law Officers' advice is regularly sought on policy development and in the planning and programme of Bills and discussions of major policy initiatives, and while they play an important role in taking Bills through this House and another place, they are in departments which are physically, administratively and constitutionally separate from the departments that contain the political Ministers. In my view, that separation is extremely important. It means that there is a separation between policy making and responsibility for such policy on sensitive and important political issues and, on the other hand, the role of the Law Officers, which is primarily involved in giving legal advice to government Ministers and assisting them with their parliamentary work.

Constitutionally, a veil has been drawn over the role which Law Officers play in giving advice to Government Ministers and their departments. The convention is that, in this Chamber and in another place, it is improper--I believe I use that word correctly--for a Minister at the Dispatch Box to acknowledge the existence of such advice, let alone the contents of it. I do not in any sense demur at the view that those are sensible conventions.

However, the giving of such advice is not just a casual part of the everyday work of government. When a Minister or his department require advice, civil servants in his department--possibly working with their own solicitors--prepare instructions for the Law Officers which are then sent to the Law Officers' department to provide that legal advice at arm's length.

I have a number of reasons for suggesting that the Law Officers of the new parliament should not be members of the Scottish executive. First, it is not normal for a lawyer to give advice to a body of which he is a full member. That is not just the position within government; it is also the situation in private practice. When one looks at Clause 48(3) and (4), on which we have already had some discussion, it will be seen that not only are the Law Officers full members of the Scottish executive, but that the statutory functions of the individual Ministers can be exercised by any member of the executive, whoever that person is--subject of course to how the first minster may allocate individual responsibilities.

Secondly, there is the role which the Government seek to give the Law Officers on devolution issues. We have already discussed that. Reference is made to the judicial committee prior to a Bill becoming an Act of

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the Scottish parliament and it is obvious from the provisions of Schedule 6 that such role will continue after the Acts receive Royal Assent. I do not intend to rehearse what was said earlier, but the importance of the Lord Advocate and the Solicitor-General, if they are to be the Scottish Law Officers, taking an independent role cannot be overstressed.

A third reason why I believe it to be inappropriate for the Lord Advocate and the Solicitor-General for Scotland to be members of the Scottish executive is that the Lord Advocate will continue to discharge the role of independent public prosecutor. In exercising that role and discharging his duties, he will have to have regard to the public interest, not only of the people of Scotland, but also on occasion to the interests of the whole population of the United Kingdom. A number of the cases he has to handle are not necessarily just high profile ones, but the more routine cases which will involve the prosecution of people in England and working with UK bodies such as Customs and Excise.

A fourth reason for the view I hold is this. We are heading towards a parliament elected by proportional representation. That must increase the prospects of an executive having to be formed by some coalition or other. If members of more than one political party form the Scottish executive, there is a strong argument that the Lord Advocate should be outwith the executive. Whether he be a member of one political party or another, in a situation where he was a full member it might be much more difficult for him to be perceived to be acting in the independent way in which Law Officers are expected to act; a way in which anyone who holds a post as a Scottish Law Officer would wish to act.

I shall be interested to hear what the noble and learned the Lord Advocate and other noble Lords have to say in response to my amendments. I beg to move.

Lord Rodger of Earlsferry: With the noble and learned Lord's experience of office as a Law Officer, he will know that one of the responsibilities--and it is perhaps the least desirable and least enviable responsibility--is from time to time to advise the Government that they cannot do what they would like to do. As I understand it, the convention which applies within the United Kingdom system is that where a Law Officer so advises in firm terms--in particular terms--the Government do not act against that advice. Can the noble and learned Lord say whether anything in this Bill--or anything at all--indicates that in the context of devolution the same convention will apply to advice given by the Lord Advocate? That is a matter of considerable importance in connection with the various matters that have been discussed in relation to vires and so on. It has a bearing on the kind of issue that has been raised by the noble and learned Lord, Lord Mackay of Drumadoon, in this amendment.

Lord Hardie: I shall answer the point raised by the noble and learned Lord, Lord Rodger of Earlsferry.

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There is nothing specific in the Bill which would mirror that convention. It is expected that the convention would continue. Certainly I would be surprised if it did not.

Lord Rodger of Earlsferry: Why is it expected? We have heard a good deal about how the parliament will have a new convention. Everything will have to be redevised. In that context, why does he expect that it will be reflected? I hope it will be reflected. I share the noble and learned Lord's view that it should be reflected. If that is so, why are the Government not putting that on to the face of the Bill? If that is what they expect, if that is the way in which the parliament and the executive should behave, why is it not in the Bill? On what basis is it expected that the convention which exists will be applied? On a number of occasions, in this House and elsewhere, I have raised the point that there is nothing to replicate the conventions upon which the whole system works at present. If it is not replicated, upon what basis other than optimism does the noble and learned Lord believe that that will be replicated in this context?

10.15 p.m.

Lord Hardie: If by "optimism" the noble and learned Lord means "confidence in the parliament", I accept that it is optimism and confidence that I have that the politicians and the executive will behave in a responsible manner. It is inconceivable that with the creation of Law Officers with the independence enshrined in the Bill that politicians would not follow this well-known practice.

The policy which the Bill reflects was summarised briefly in the White Paper. It recognised that the Scottish executive would require the services of Law Officers to provide it with advice on legal matters and to represent its interests in the courts and that the role and responsibilities of the Lord Advocate as prosecutor were to be devolved with his traditional independence maintained. The Bill delivers that policy and safeguards the Lord Advocate's independence in a number of its provisions. I do not propose to rehearse those in any detail.

The effect of Clause 45(3) is that the Lord Advocate and the Solicitor-General will cease to be Ministers in the United Kingdom Government and to be the United Kingdom Government's Scottish Law Officers. It is envisaged that that will take place shortly after the first appointment of the first minister so that the Scottish law officers will be part of the Scottish executive from the beginning and will be able to influence and to shape the working practices of the executive even before the principal appointed day when the Scottish ministers will acquire their full powers.

Clause 45(1) provides for the appointment and removal from office of the Scottish law officers. When the Lord Advocate ceases to be a member of the United Kingdom Government and becomes a member of the Scottish executive, it is proposed that he should retain his existing and traditional functions as head of the systems of criminal prosecution and investigation of deaths in Scotland. Those functions are to be retained

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by him in his own name and will be capable of being exercised only by him or, when he is unavailable, by the Solicitor-General for Scotland.

The Lord Advocate will be entrenched in that role by Clause 28(2)(e), which prevents the parliament from removing him from his position as head of those systems. This does not prevent the parliament from amending those systems, but Clause 45(2) confirms the continued independence of the Lord Advocate in his capacity as the head of those systems by providing that any decision of the Lord Advocate in that capacity,

    "shall continue to be taken by him independently of any other person".

Those provisions secure the protection that the Lord Advocate requires to fulfil his responsibilities in a way that will uphold his traditional independence.

As I explained previously in answer to a question from the noble and learned Lord, Lord Rodger of Earlsferry, it is proposed that all the other functions currently exercised by the Lord Advocate which do not relate to his Law Officer functions will be transferred from him before he ceases to be a Minister of the Crown and becomes a member of the Scottish executive. That is important. As the noble and learned Lord will be aware, the Lord Advocate has functions which are executive in nature in relation to, for example, certain functions which are the responsibility of the Scottish courts' administration. Those functions, and involvement in the recommendations for appointment of industrial tribunal and other tribunal chairmen, are executive functions. Three other transfer of functions orders will be needed in order to effect that and, for the information of the Committee, I have laid working drafts of those transfer of functions orders in the Printed Paper Office.

One of the transfer of functions orders proposes to transfer to the Secretary of State functions which the Lord Advocate currently exercises in relation to devolved matters, apart from the functions which he is retaining. Those are executive functions. They will then be transferred to the Scottish ministers on D-day under Clause 49. All functions conferred on the Scottish ministers will be capable of being exercised by any of them. It will be for the first minister to determine the portfolios of individual Scottish ministers. The Lord Advocate and the Solicitor-General will be Scottish ministers and the first minister could allocate some of those functions--or, indeed, additional functions--to them as Scottish ministers.

In the light of that background, I turn to the amendments proposed by the noble and learned Lord, Lord Mackay of Drumadoon. At present, because the Lord Advocate has certain executive functions--as a Law Officer, he gives legal advice to the Government--what is proposed is not incompatible with his present role in that regard. Nor is his involvement with the executive and these other executive functions incompatible with his role as an independent public prosecutor. The noble and learned Lord will be aware that throughout the centuries the Lord Advocate has been very jealous of the independence of his role as public prosecutor and has continued to act in the public interest both for the people of Scotland and for the

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people of the United Kingdom. That will continue after devolution. There is no inconsistency in his role as independent prosecutor and his role in performing certain executive functions.

Amendment No. 257B would prevent the Scottish law officers from exercising any of the statutory functions of a member of the Scottish executive other than those that are specific to a law officer. The Government cannot accept this amendment. It goes against the general approach in the Bill, which is to make all the functions transferred to or conferred upon Scottish Ministers capable of being exercised by any of them in accordance with whatever allocation of functions is decided upon by the first Minister.

The amendment would also prevent the Scottish law officers from exercising any of the functions which are transferred to Scottish Ministers under Clause 49 or 59. It would deny them the opportunity to exercise the administrative and policy functions which are currently exercisable by them, for example, in relation to civil jurisdiction and procedure, diligence and the law of evidence and which will be transferred to Scottish Ministers. In practice it is likely that these kinds of policy functions which relate to the Scottish judicial system will be exercised by the Scottish minister responsible for civil justice matters. At the present time that is the Lord Advocate. There is no reason to deprive a future Lord Advocate of the opportunity of performing these functions if the first minister considers that it is appropriate that he should do so.

That will also be the case with regard to a number of functions which are currently exercised by the Lord Advocate or the Secretary of State in relation to tribunals concerned with reserved matters which it is proposed should be transferred to Scottish ministers by an order under Clause 59. These functions involve making, or being consulted about, appointments, procedural rules and other procedural matters. We also expect the first minister to allocate these functions to the Scottish minister responsible for civil justice matters. At present that is the Lord Advocate. Why after devolution should the first minister not be allowed to allocate that function to the Lord Advocate again if he considers that to be appropriate? In exercising those functions, the role of the relevant Scottish minister, whether it is the Lord Advocate or any other minister, will relate to his involvement in the civil justice system rather than any other policy interest of the Scottish executive in the matters concerned.

It is appreciated that it may not be appropriate for the first minister to allocate certain of the functions of the Scottish ministers to the Scottish law officers, such as those which impinge on the criminal justice system, in view of their present prosecution responsibilities. That is observed at the present time. It is inconceivable that any Lord Advocate would accept any responsibility which conflicted with his independent function of prosecutor. However, the reasons given by the noble and learned Lord do not seem to be sufficient grounds to prevent certain appropriate policy functions from being allocated to the Scottish law officers if the first minister wishes to do so.

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In the light of these explanations, I ask the noble and learned Lord to withdraw his amendment.

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