Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Rodger of Earlsferry: I wish to ask the noble and learned Lord the Lord Advocate about the point raised by the noble and learned Lord, Lord Mackay of Drumadoon. Does he anticipate that the Lord Advocate, in carrying out his role as head of the prosecution service and dealing with a crime under, say, the Misuse of Drugs Act, would have to adopt the public policy interest as defined in the United Kingdom legislation, even though he was not a member of the United Kingdom executive? In other words, would he have to take the view that it was public policy as laid down in that statute rather than, for example, the view which he as a member of the Scottish executive might take on the issue of drugs, which would have a bearing on whether in any particular case a prosecution would be mounted?

10.45 p.m.

Baroness Carnegy of Lour: I have one small point to make from a completely lay point of view. Scotland is a very small place. When the Lord Advocate is appointed, the first thing that will happen is that the elected members of the Scottish parliament will have to approve his appointment before the first minister can make a recommendation to Her Majesty. I believe that is right.

There may be a squabble. We do not quite know how the whole thing will work out. The public will know that there has been a squabble. At the moment, they respect the system. They do not question it at all. They never wonder whether Her Majesty has appointed the

28 Jul 1998 : Column 1461

right Lord Advocate. Other lawyers may, but members of the public do not. It seems to me that his status will be very different as a result of this change. That is part of the problem which my noble and learned friend raises.

I look at this matter as I believe the public will see it. They would discover, if there was a problem, that the Lord Advocate can be dismissed by the first minister and that that has nothing whatever to do with this Parliament. It will be very different. The Lord Advocate will be a much more local figure in the public view. Consequently, he will be more vulnerable to criticism. That is very important. I hope that the Government have thought this out carefully.

Lord Hardie: I assure the noble Baroness, Lady Carnegy, that we have thought carefully about this. It follows on, to some extent, from the point made by the noble and learned Lord, Lord Mackay of Drumadoon, about the position in the 1970s when one was speaking about a Scottish assembly as opposed to a Scottish parliament.

Since the 1970s, a lot has changed. There has been the Scottish Constitutional Convention which deliberated long and hard on the question of the devolution of the legal system. I am sure that the noble Baroness and noble Lords will accept that one of the peculiarities and specialties of Scotland is its independent and separate legal system. Therefore, if one is devolving power to a Scottish parliament, one of the particular functions that is an obvious candidate for consideration is the legal system.

As I say, that was considered at great length and in some considerable detail by the constitutional convention. The decision was that it should be devolved. Thereafter, the Government considered that matter and accepted that. That was reflected in the White Paper, which was the basis for the referendum.

The logic of the position adopted by the noble and learned Lord is that the legal system and, in particular, the peculiarly Scottish criminal legal system, should not be devolved. That is the logic, and can only be the logic, of his position because the Lord Advocate is head of the prosecution system. If you retain or reserve the Lord Advocate in London as a Law Officer in the United Kingdom Parliament, it is inconsistent with devolving the prosecution system, unless you are going to say that the whole system should change and that the Lord Advocate, after several centuries, should no longer be head of the prosecution system and that that should be passed, perhaps, to the Solicitor-General for Scotland.

But there is another flaw in the noble and learned Lord's approach. He is seeking to separate the Lord Advocate and the Solicitor-General, leaving one in London with the United Kingdom and one in Scotland with the Scottish parliament. But that just will not do. As the noble and learned Lord will be aware, having held the office of Lord Advocate, the Law Officers Act 1944 provides that the Solicitor-General will be in a position and is empowered to discharge any functions of the Lord Advocate where the office of the Lord

28 Jul 1998 : Column 1462

Advocate is vacant; or where the Lord Advocate is unable to act for any reason; or where the Lord Advocate authorises him to act on his behalf in a particular case. So, by splitting the two Law Officers, is the noble and learned Lord suggesting that the provisions of the 1944 Act should be cast aside? If that is the position, it will have very serious implications for the prosecution service in Scotland. I give way to the noble and learned Lord.

Lord Mackay of Drumadoon: I am much obliged. In moving the amendment I was proceeding on the assumption that, if the Committee was with me in principle, the Government would follow the normal convention of carrying out any necessary amendments to implement the wish of this Chamber. I fully accept that one could trawl through various Acts of Parliament and no doubt find provisions which might, on one view, be inconsistent with the principal amendment that I seek to make. I do not for a minute demur to the suggestion that the Scottish parliament will need Law Officers. However, I seek to raise the simple question as to why--and, indeed, it is suggested that my reasoning in this respect is flawed and my logic incorrect--if it was considered to be sensible in 1978, it is illogical, flawed and, quite frankly, a nonsense in 1998. I find that difficult to follow. That is the issue which I hope the noble and learned Lord will address.

Lord Hardie: I thought that I had done so. The position is that 20 years have passed since that time and the intention then was to have an assembly. However, that did not work out and it did not come into being. It may be that the noble and learned Lord and others regret that fact and wish to turn back the clock, but that is not possible. Since then we have had the constitutional convention and there has been much thought about the future governance of Scotland. It has been decided that the proper form of devolution, which the Government have adopted, is to devolve the criminal justice and the civil justice systems. The logical consequence of that is that the Lord Advocate will be devolved.

If one is arguing for the retention of the Lord Advocate in London, then the logic behind that is that one is arguing for not devolving the criminal prosecution service. The reference by the noble and learned Lord back to the 1970s and the original arrangements of 20 years ago, where the Lord Advocate and the criminal prosecution service were not being devolved, suggests to me that what he really wants is the retention or the reservation of the criminal justice system. In my respectful submission, that fails to recognise the fact that it is sensible to devolve to Scotland the system of law and the system of prosecution, both of which are peculiar to Scotland.

Perhaps I may attempt to answer the point made by the noble and learned Lord, Lord Rodger. The Lord Advocate will, of course, have to take account of legislation, whether it is passed by the Scottish parliament or by the UK Parliament, and will have to decide whether it is appropriate to prosecute under it. As the noble and learned Lord will be aware, the simple fact that a piece of legislation creates an offence does

28 Jul 1998 : Column 1463

not automatically mean that prosecution follows in every case. The Lord Advocate of the day and local fiscals exercise discretion and operate certain policies in relation to what may be considered to be less serious breaches of the legislation. The policy of the United Kingdom Parliament, in creating an offence, will be an overlay of the policy of the Lord Advocate himself in determining whether to prosecute.

Lord Rodger of Earlsferry: I accept, as the noble and learned Lord would readily understand, that anyone who has held the office knows that in the case of minor breaches or breaches involving young people, particular factors come into account. Leaving all these things aside, is it the position that the Lord Advocate would be bound by the public policy, as stated by the United Kingdom Parliament, for example in the case of drugs, in precisely the same way as he would be bound by the policy he has expressed in an act of the Scottish parliament in some devolved matter giving rise to a criminal offence? That is the issue which I am seeking to identify, leaving aside the particular factors which might of course apply in any given case.

Lord Hardie: The short answer to that is yes. The question that I should like to propose to the House is why should noble Lords go against what was decided in the referendum which followed upon the White Paper, where it was quite clear that the question of the criminal justice system would be devolved and that the law officers would also be devolved?

It is flattering to think that the noble and learned Lord wishes to retain me in London. I am flattered by the obvious affection in which he holds me. I regret that the legislation is such that, if I am fortunate enough to be appointed Lord Advocate, I would not remain in London, although I would hope to visit this Chamber on occasions.

So far as concerns Amendment No. 257A, I am not sure whether the noble and learned Lord spoke to that. The position there is that this amendment is unnecessary. The Lord Advocate will remain responsible for the appointment of staff within his office--namely, the particular legal staff that form the procurators fiscal--and would have a say in the appointment of senior members of the Civil Service serving in his staff.

Next Section Back to Table of Contents Lords Hansard Home Page