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Lord Sewel: For the avoidance of doubt, I certainly did not mean to say that it would necessarily be approval of each appointment; it could well be approval by an en bloc slate.

Lord Mackay of Ardbrecknish: I understand that; it probably would be. But if someone in the parliament or a group in the parliament did not like one of the appointments, they would use the procedures to tease that one out and look at it individually.

On the point about the vote of confidence, I accept collective responsibility and was pleased to hear the Minister accept that if the parliament found a way to propose a vote of no confidence in one individual, then he or she would probably be sacked by the prime minister or feel obliged to resign. Dare I say it, I do not think my three words to be added, "either he or" would have made all that difference to the Bill. However, in the spirit that these were probing amendments to ask exactly how the two clauses were worked and why they were put together in the way they were, I am reasonably satisfied with the answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 255K to 255N not moved.]

Clause 44 agreed to.

Clause 45 [The Scottish Law Officers]:

[Amendment No.255P not moved.]

Lord Mackay of Drumadoon moved Amendment No. 255Q:


Page 20, line 19, at end insert--
("(1A) The Lord Advocate and Solicitor General for Scotland shall be qualified as either--
(a) an advocate, or
(b) a solicitor under the Solicitors (Scotland) Act 1980.").

The noble and learned Lord said: This is a very small amendment. I may be wrong but I believe it was suggested at some stage by the Law Society of Scotland. I am well aware that mentioning that support does not always meet with approval on the Government Front Bench, but on this occasion there is no reason why it should not. All it seeks to provide is that both the Lord Advocate and the Solicitor-General for Scotland should be qualified either as an advocate or as a solicitor under the Solicitors (Scotland) Act 1980. The noble and learned Lord the Lord Advocate qualifies under the first branch of the amendment; he would formerly have qualified, the last one being, like myself, a struck off

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solicitor. It seems eminently sensible that this should be on the face of the Bill and I hope that for once the Law Society's suggestion might prove acceptable to the Government. I beg to move.

Lord Thomas of Gresford: As a member of the struck off solicitors' club, I also support the amendment. It seems to me that if a solicitor today can appear in the High Court, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council, he ought to be qualified to be the Lord Advocate or Solicitor-General for Scotland. I support the amendment.

Lord Rodger of Earlsferry: There is just one matter which does not directly arise out of the amendment. I wish to ask the noble and learned Lord the Lord Advocate whether he could help with this matter.

Clause 44(3)(c) envisages that a minister appointed under that clause may resign. Clause 45 envisages, so far as I can see, only that the first minister may recommend the removal of a person as Lord Advocate. It is not unknown for Lords Advocate to adjourn from time to time to resign their office. Is it possible, under this legislation, for the Lord Advocate to resign? I ask that because, as the noble and learned Lord the Lord Advocate will know in general terms, although he will not have studied it from his point of view, the Lord Advocate's resignation or, as it is put in the more genteel language of the Criminal Procedure (Scotland) Act 1995, the demission of office, has certain important consequences from the point of view of the prosecution of crime, the office of advocate's depute, indictments and so on.

In that situation, it is important that the question as to the resignation or demission of office of the Lord Advocate and the Solicitor-General should be dealt with. Because under the Bill they become creatures of statute, if one looks at Clauses 44 and 45 together, one might wonder whether the Lord Advocate could resign.

Perhaps the Government could look again at the terms of Clause 45 and consider whether an amendment to deal with the resignation or demission of office of the Lord Advocate might be appropriate.

Lord Hardie: There is some force in what the noble and learned Lord, Lord Rodger of Earlsferry, says. I shall look at the matter and come back to him either in writing or at a later stage.

In relation to the amendment proposed by the noble and learned Lord, Lord Mackay of Drumadoon, which is supported by the noble Lord, Lord Thomas of Gresford, apart from the debate in the other place, so far as I am aware, the last time that this issue seems to have been considered was in 1924 when Ramsay MacDonald formed a Labour Government.

It is said that it was a radical suggestion that a solicitor should be appointed as Lord Advocate. The Lord President of the day--Lord President Clyde--wrote a memorandum to Downing Street, which was published. That memorandum states clearly that it is part of the unwritten constitutional law of the land that the

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Lord Advocate and Solicitor-General for Scotland are appointed from among the members of the Scottish Bar. That springs, in the same way as other parts of the law, from long custom. It has not been felt necessary in the past to prescribe the qualifications for office of the Scottish Law Officers and it is not clear why that should be necessary now.

To deal with the point made by the noble Lord, Lord Thomas of Gresford, although certain solicitors have rights of audience in the supreme courts, they may only have rights of audience if they satisfy certain criteria, and even then they only have rights in the civil courts, the criminal courts or both. It is my understanding that few solicitors in Scotland qualify for rights of audience in both. It would not be appropriate, therefore, to have someone who did not have a right of audience in both the civil and criminal supreme courts to hold office as Lord Advocate or Solicitor-General.

Again, this is not something which ought to be enshrined in statute and I invite the noble and learned Lord to withdraw his amendment.

Lord Thomas of Gresford: I regard that reply as unsatisfactory because it seems to me that it is against the grain of how things are moving both in England and Wales and in Scotland. I note that the Law Society of Scotland suggested that the first appointment of a King's solicitor in 1587--Mr. William McCartney--was of a man who was regarded as a King's Clerk, writer and special agent, which suggests he was a solicitor in those days. It was later that the office became the preserve of the members of the Faculty of Advocates.

We are moving forward with rights of audience. I should have thought that the Lord Chancellor might have a word with the noble and learned Lord on this topic. I know that he is concerned to advance the rights of audience of solicitors and is making proposals to that effect. I do not believe it is enough to leave the legislation as it stands; there should be specific provision in the Bill for solicitors to hold those offices.

Lord Mackay of Drumadoon: I too find the reply of the noble and learned Lord a disappointment. He said that he did not consider it appropriate that the positions of the Lord Advocate or the Solicitor-General should be held by anyone who was not a member of the Faculty of Advocates. But we have to be clear what the Government's view is on this issue.

It is quite possible that solicitors will be elected as members of the Scottish parliament. Equally, it is quite possible that members of the Faculty of Advocates will be elected as members of the Scottish parliament. If it falls to the first minister to say to a potential law officer, "I am sorry, I cannot make you a law officer because you are a solicitor", then whether or not rights of audience are extended is neither here nor there. If he says, "I cannot make you one", I can see that that will create considerable unrest both within the parliament and within the profession. I hope, therefore, that before we come to Report this matter can be looked at more fully.

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My understanding is that the Lord Advocate can appoint as one of his deputes, to act in his name and to prosecute in the High Court of Justiciary, someone who is neither a member of the Faculty of Advocates nor holds extended rights of audience. As some Members of the Committee will be aware, that understanding followed from advice from the committee which examined the issue. As we move forward to a new parliament, it would be a retrograde step to be apparently moving backwards to 1926. I do not expect the noble and learned Lord, Lord Clyde, to seek to defend his grandfather's views but he would acknowledge that they might fall to be reconsidered some 70 years on.

For reasons which will be obvious to many noble Lords, this is not a matter to press to a Division at half-past twelve, but we shall return to it unless there is some change of heart. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.30 p.m.

[Amendments Nos. 255R and 255S not moved.]

Clause 45 agreed to.

Clause 46 [Junior Scottish Ministers]:

[Amendments Nos. 255T to 255X not moved.]

Clause 46 agreed to.


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