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Page 39, line 28, at end insert--
("(4) The Advocate General may appoint persons to be members of the Advocate General's Secretariat.
(5) The Advocate General's Secretariat shall include a Legal Secretary and First Scottish Parliamentary Counsel and such additional Scottish Parliamentary Counsel as the Advocate General shall deem necessary.
(6) No person may serve as Legal Secretary to the Advocate General or as a Scottish Parliamentary Counsel, unless he is qualified as either--
(a) an advocate, or
(b) a solicitor under the Solicitors (Scotland) Act 1980.").

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The noble and learned Lord said: This is the second of the amendments dealing with the position of the Advocate General. It seeks to raise an issue relating to what is described in the amendment as "the appointment of the Advocate General's secretariat".

It is necessary to understand the background of the amendment and its relationship to the future work of your Lordships' House by outlining the present arrangements for supporting the Scottish Law Officers in their work. This may be known to some noble Lords, but probably not to all.

In London, the Lord Advocate maintains an office known as the Lord Advocate's Department where there are based a number of very experienced lawyers who constitute the team of Scottish parliamentary counsel. The senior official in the department, who currently holds a very high grade in the Civil Service, is appointed to the post of Legal Secretary and First Scottish Parliamentary Counsel. To assist him in his work, he has a number of legally qualified colleagues. The legal staff in the department act as parliamentary draftsmen and assist the two Scottish Law Officers in the advisory work they carry out in tandem with their English counterparts, the Attorney-General and the Solicitor-General.

The Scottish parliamentary draftsmen are entirely responsible for the drafting of Bills that deal only with the law of Scotland. They also draft Scottish provisions in Bills such as the Crime and Disorder Bill, which was considered by your Lordships' House during the current Session, in which a number of the provisions relate only to England and Wales and others relate only to Scotland. A further aspect of the drafting work is in relation to legislation which has UK application, for example, that relating to misuse of drugs.

In addition to drafting work, officials help the Scottish Law Officers in connection with the Lord Advocate's membership of various Cabinet committees dealing with the approval of legislation, helping him to advise on the ECHR implications of proposed legislation, and the like. A third aspect of their duties is the opinion work.

After devolution it is clear that some of the drafting work currently undertaken will disappear: it will be done in Scotland by draftsmen working to support the Scottish executive in presenting legislation to the new parliament. However, there will remain a fair amount of work in London in connection with legislation going through this House and another place--drafting which is necessary to take account of the particular circumstances and principles of Scots law and scrutiny of draft legislation to ensure that if it is intended to apply on a UK basis it is compatible with the existing common law of Scotland and does not unintentionally serve to amend that law in a way which was not proposed.

In my submission, in carving out this new role as I have described it--the bed of nails, as the noble and learned Lord, Lord Rodger of Earlsferry, described it--it is entirely appropriate that the Advocate General should be supported by officials who hold qualifications which entitle them to practise in Scotland, whether as

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advocates or solicitors. They can possess those qualifications only if they have studied Scots law and passed certain examinations, whether at university or through the Law Society or the Faculty of Advocates, in connection with that law.

It is for that reason that I put forward the amendment. It is essential to the work of this House and another place that in the years to come the legislation which we are invited to scrutinise and pass has been properly drafted and scrutinised, long before it reaches us, by a draftsman schooled in the law of Scotland.

In view of the fact that after devolution there will be only one Scottish Law Officer, it is quite possible that that Law Officer will not be a Member of your Lordships' House. He or she can be a Member of only one House. In the years to come, through membership of your Lordships' House of Lords of Appeal in Ordinary, and in other ways, no doubt there will be some Members of your Lordships' House who have practised or still practise as Scottish lawyers. But there may not be a Scottish Law Officer as such. That seems to me to make it even more important that the Government clearly indicate to the Committee, and to the wider public, their plans for ensuring the proper drafting and scrutiny of legislation to take account of Scots law. I beg to move.

11.30 p.m.

Lord Hardie: As was mentioned in connection with the previous amendment, the Advocate General will be the Scottish Law Officer of the United Kingdom Government. Like any other member of the United Kingdom Government, the Advocate General ought to be able to create whatever posts are needed within his or her own department and to decide what qualifications holders of those posts should have.

At best, therefore, these amendments are unnecessary. At worst, they could damage the ability of the Advocate General to organise his or her department in the best and most efficient way. The Advocate General should have the same powers in this regard as the Lord Advocate to appoint his own staff, who become members of the Civil Service. It would be inappropriate to specify in statute how the Lord Advocate should organise his department or what qualifications his staff should have. I venture to suggest that it would be equally inappropriate to make such provisions in statute for the Advocate General.

This is not a matter which should be put on the face of the Bill and in that circumstance I ask the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, could he give some indication to the Committee what the Government have in mind in this regard? He said that it is inappropriate to put the provision on the face of the Bill. Leaving aside that argument, what do the Government propose? Is it intended to have Scottish parliamentary counsel? Is it intended to have some counsel who are qualified in the law of Scotland? Is it intended to have only one department for parliamentary counsel in London, the

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first parliamentary counsel being in charge of that department, and it being a matter of chance as to whether any of his team are Scottish lawyers?

Whether or not it is appropriate to put the provision on the face of the Bill, I suggest that they are important issues. I believe that the Committee would be favoured by some explanation of the Government's proposals? I assume that some thought has been given to it and I for one would like to hear their thinking.

Lord Hardie: Of course, considerable thought has been given to the allocation and reallocation of staff and is still being given by a committee of civil servants who are concerned about the proper disposition of staff. What I can say is that the Advocate General will be properly resourced with properly qualified members of staff; in other words, people qualified in Scots law.

Lord Mackay of Drumadoon: It is a matter of regret that it is not possible to give a fuller answer to the questions I asked, in particular to address the issue of whether there will be a separate department and whether the senior official will be qualified. In the light of the previous vote, it would be a needless exercise to press this amendment to a vote. I certainly intend to reflect on what the noble and learned Lord the Lord Advocate said about it being damaging to the role of the Advocate General to ensure that he has in his staff people qualified in the law of Scotland. That is an argument which I and others will wish to consider with interest. Against that background, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 290E:


After Clause 82, insert the following new clause--

Solicitor's Office for Scotland

(" .--(1) Following upon the commencement of this Act, the Secretary of State for Scotland shall maintain within his Department a Solicitor's Office.
(2) The Secretary of State shall appoint a person to be Solicitor to the Secretary of State for Scotland.
(3) The Solicitor to the Secretary of State for Scotland shall serve as head of the Solicitor's Office.
(4) The Solicitor to the Secretary of State for Scotland shall appoint such Assistant Solicitors to serve within the Solicitor's Office as he deems necessary.
(5) No person may serve as Solicitor to the Secretary of State for Scotland or as an Assistant Solicitor, unless he is qualified as either--
(a) an advocate, or
(b) a solicitor under the Solicitors (Scotland) Act 1980.
(6) The Solicitor to the Secretary of State for Scotland and Assistant Solicitors serving in the Solicitor's Office may not provide legal advice and assistance to the Scottish Parliament, the Scottish Executive or any member of the Parliament or represent such persons in legal proceedings in such courts and tribunals in which they enjoy rights of audience.
(7) The Solicitor to the Secretary of State for Scotland and Assistant Solicitors serving in the Solicitor's Office may provide legal advice and assistance to any Minister of the Crown or

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Government Department or represent such persons in legal proceedings in such courts and tribunals in which they enjoy rights of audience.").

The noble and learned Lord said: This is a similar amendment dealing with a slightly different topic; namely, the provision of legal advice and assistance following upon devolution. It raises an issue which I have little doubt has been considered by the Government, possibly by the same committee of officials to whom the noble and learned Lord the Lord Advocate referred a moment ago, as part of the allocation of staff, officials and resources after devolution.

I am anxious to explore whether it is intended that the lawyers who are employed by the Government to act as solicitors to the Secretary of State for Scotland are to form part of a legal office separate from those who will be acting for the First Minister and his colleagues who are members of the Scottish executive. In accordance with common practice, they can be either solicitors or advocates and act for the Secretary of State's colleagues in Government. I refer, for example, to the Secretary of State for Defence who becomes involved in litigation in Scotland whether as a result of accidents to employees or whatever. From a study of the provisions of the Bill, the Committee will appreciate that there are many instances where it is possible--indeed, some people may say highly likely--that from time to time there will be litigations taking place in which a member of the Scottish executive will be involved on the one side and an individual UK Government Minister on the other. In such circumstances the potential for conflict of interest undoubtedly exists.

The noble and learned Lord the Lord Advocate will be aware from the letter I have received from the president of the Law Society--I understand the letter was copied to his office--that the society supports this amendment regarding the maintenance of an independent office of Solicitor to the Secretary of State for Scotland. The president says in his letter:


    "In particular, the provisions of your amendments in sub-clause (6) and sub-clause (7) will help to ensure that the Solicitor's Office is not in a position which could be potentially one of conflict of interest".
Again I invite the noble and learned Lord the Lord Advocate to explain to the Committee the Government's thinking on this important issue. I beg to move.


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