Examination of Witnesses (Questions 1-19)|
MP, MR GEORGE
FOULKES, MP, DR
QC, MP AND MR
WEDNESDAY 7 NOVEMBER 2001
1. Good morning, ladies and gentlemen. Can I
thank you very much for agreeing to appear before the Committee
this morning, it is greatly appreciated. For the purposes of the
record, would you like to introduce yourselves at this point?
(Mrs Liddell) Thank you very much, Chairman.
I am very glad to have the opportunity to appear before this Committee.
This is my first appearance before the Scottish Affairs Select
Committee and it is a very useful opportunity for an exchange
of views on how the Scotland Office functions. My fellow witnesses
are the Minister of State, George Foulkes, Lynda Clark, who is
the Advocate General, and Ian Gordon who is the Head of the Scotland
Office and its Accounting Officer.
2. I am going to kick off, then, with something
from the Departmental Report on recruitment of Scotland Office
staff. We noticed in the report that there is a section that says
all staff of the Scotland Office are currently on loan from the
Scottish Executive. What administrative requirement underlies
the arrangement whereby staff to the Scotland Office are on loan
from the Scottish Executive?
(Mrs Liddell) If I can give some background and go
slightly wider I can be more expansive about it. The Scotland
Office is a brand new department in a brand new arrangement, and
whenever the changes were made when the Scotland Office emerged
from the previous Scottish Office (as you know, previously all
staff were the staff of the Scottish Office), that was an operation
that had been in existence for 116 years, with everybody having
clearly defined roles. At the time of devolution I was Minister
of State at the Scottish Office and it was agreed that initially
the Office of the Secretary of State for Scotland would be a very
small operation; it would, in fact, be little more than a private
office and that the bulk of briefing and policy development work
would all be done by the Scottish Executive. Additionally Dr Clark,
the Advocate General, would have a team of about 30 lawyers and
support staff who work with her as Law Officer, and that was part
of the set-up. Of course, devolution started with a blank sheet
of paper. At the beginning we did not know quite how the role
of the Scotland Office would develop and it became apparent, when
the first Secretary of State post-devolution was appointed, that
there was a need for much more policy development than had previously
been envisaged. For example, Scotland Office Ministers sit on
something like 19 different Standing Cabinet Committees plus a
whole range of ad hoc Committees, and we need support to
be able to do that. It was felt the best way to deliver that support
rather than it being from 450 miles away was to second staff from
the Scottish Executive to the team that operates the Scotland
Office. By and large it works successfully, but, of course, we
are still learning about the devolution process and still learning
about the demands made on the Scotland Office.
3. Does the arrangement contain any difficult
implications for staff at the Scotland Office?
(Mrs Liddell) I think one of the difficulties, as
you will see from the figures, is that we are not yet up to full
complement because we function largely as a Whitehall department
but with the exception of the people who work for the Advocate
General, the small team who operates between Glasgow and Edinburgh.
It is quite difficult to attract staff whose homes may be in Scotland
to take secondments to operate in Dover House. I think it is fair
to say that prior to the General Election of this year there was
some uncertainty about the future of the Scotland Office, which
has now been resolved. We are hoping to increase our staffing
complement, but I have to say I am also quite interested in encouraging
secondments from other Whitehall departments to the Scotland Office,
not just because it would give us access to a whole range of expertisealthough
the expertise we do have access to is indeed very considerablebut
we are a repository of best practice now on how to deal with a
devolved administration, and as devolution rolls out to those
parts of England that want it I think it would be quite useful
for other Whitehall departments to learn the process of dealing
with devolved administrations.
4. To what extent and at whose behest do staff
ebb and flow between the Scotland Office and the Scottish Executive?
(Mrs Liddell) That might be one that would be better
answered by Mr Gordon.
(Mr Gordon) Perhaps I can add one or two more technical
points about the way the Scotland Office looks to staff itself.
We do not act as an employer in our own right, we are a small
department which does not take on the full functions and legal
responsibilities as an employer of staff. We are a department
that is created by the secondment of staff from other organisations
to it. Given our inheritance, as the Secretary of State has explained,
in effect we were created from staff seconded from the former
Scottish Office whose legal employment transferred to the Scottish
Executive. Staff are almost entirely from the Scottish Executive.
However, we have started already, as the Secretary of State mentioned,
to recruit staff on secondment from Whitehall. Indeed, someone
has come to us from the House of Lords. The practicalities are
that most of the staff are still based in Scotland. There is a
significant number of staff based in Dover House, so these staff
based in Scotland feed into the United Kingdom system on behalf
of Scotland, and they can expect, in due course, to return to
employment in the Scottish Executive. We are similar to various
other small departments like the Wales Office and the Northern
Ireland Office, which also rely on secondments from various other
5. Where would their first loyalties be, to
the Scottish Executive or to Westminster?
(Mr Gordon) I think there is no doubt about it at
all, the staff of the Scotland Office are loyal to the Secretary
of State for Scotland and those Ministers they work for. It is
common for civil service staff to move from one department to
another and then to return. For example, the Cabinet Office has
a significant number of staff appointed to the Cabinet Office
from other departments and who return to those other departments.
There is no question raised about their loyalties to the Cabinet
6. Their career structure would clearly be seen
at Westminster and the career structure of the staff coming from
the Scottish Executive would presumably be seen in Edinburgh.
Does that not pose a difficulty?
(Mr Gordon) I do not think we have found any difficulties
at this stage. Clearly, this is something that we may have to
watch and see how it evolves, but as things stand at the moment
I do not think we have detected any significant problems.
(Mrs Liddell) We work very much in partnership with
the Scottish Executive. I think one of the great successes of
devolution has been that we have been able to broker a partnership
and, to some extent, that is helped by the fact that staff know
their way around the Scottish Executive staff. However, if that
partnership was to be fractured at any time then there might be
difficulties, but I have never had anxieties about the loyalty
of my officials to the Office of the Secretary of State.
7. You talk about career structures, and the
career structure within the civil service in Scotland is different
to Whitehall. If people do not want to come down from Edinburgh
to London for secondment, is it seen as affecting their career?
(Mr Gordon) The civil servants who transferred to
the Scottish Executive are still considered to be home civil servants
subject to the code of behaviour of civil servants. The arrangements
for determining their pay and conditions of service are similar
to those throughout the UK civil service, in the sense that significant
responsibilities have been devolved to departments to determine
pay and conditions locally. So in that sense there is a good deal
of commonality still between the way civil servants look on their
careers. It is intended that there should be movement of civil
servants from the Scottish Executive to other Whitehall departments
and back again, and that there will be secondments in both directions
to maintain a degree of interchange. We do not, at the moment,
see any reason why there should be significant differences. The
fact of the geography, of course, is one that simply cannot be
avoided; people will have families and ties which will make them
more or less willing to accept movement.
8. Within Whitehall those civil servants can
be moved from department to department, but I wondered if there
was a problem, given that the Scottish Executive has, presumably,
a departmental structure within its own civil service as well,
with moving from that structure to the Whitehall structure and
back again and whether there was any resistance from civil servants.
(Mr Gordon) There are movements of staff from Whitehall
to Government offices throughout the UK. A lot of UK departments
have offices around England; the Northern Ireland Office has staff
posts in Belfast and staff posts in London, and the Wales Office
at the National Assembly of Wales may also envisage movements.
The Scottish Executive is of a size to be able to offer its staff
a career in Scotland. Even then, it might be looking for staff
to move within Scotland to various offices that there are. So
civil servants accept, at certain levels, an obligation to move.
The opportunity to move and to work in Whitehall is there. I think,
in various respects, that might be seen as being advantageous,
but whether an individual is willing to accept such a move will,
obviously, depend on a whole variety of circumstances.
9. Secretary of State, you said that partnership
is key to ensuring that the Scottish Executive and the Government
achieves the best possible outcome for the Scottish people. What
examples of the Scottish Executive and the UK Government working
together have been particularly noteworthy since devolution?
(Mrs Liddell) I will begin the answer and ask the
Minister of State to continue. I think we had an example of it
yesterday with the announcement of the Freight Facilities Grant
for the Rosyth to Zeebrugge Ferry. That was an example where we
worked together to secure the best possible outcome for Scotland.
My own involvement, for example, in seeking to resolve the difficulties
of the widows and victims suffering from asbestosis following
the collapse of Chester Street Holdings, the Insurance Company,
could not have been progressed had it not been a partnership between
myself and the Executive and a partnership between the Scotland
Office and other Whitehall offices. Indeed, there are a number
of occasions where the regular contact that I have with the First
Minister and the regular contact the Minister of State has with
other Ministers means that we can progress issues before they
become problems. That ability to talk to one another and to understand
one another and be seen to be working together, I think, is one
of the most powerful lessons that we have learned from the two-and-a-half
years of devolution. I will ask the Minister of State, who has
a specific role of liaising with the Scottish Executive and the
Scottish Parliament, about some of his experiences.
(Mr Foulkes) Thank you, Secretary of State, thank
you, Chairman. Can I say I also welcome the opportunity of appearing
before the Select Committee. In my four years as Under-Secretary
of State at International Development I never once appeared before
that Select Committee, so it is a great pleasure. As the Secretary
of State said, I have been given this specific responsibility.
It is done informally and formally; informally I keep in touch
with the Minister for Parliament, Tom McCabe, on a very regular
basistwo to three times a week on the telephone and meet
with him from time to timeto find out what is happening
in the Scottish Parliament, talk about things like Sewel Motions,
which I am sure all Members are aware are vitally important for
allowing us to legislate on devolved areas, where it is sensible
to do so. I have also established formal meetings with each of
the operational ministers. We have had 11 so far, with six of
the ministersJack McConnell, Sarah Boyack, Malcolm Chisholm,
Susan Deacon, Alasdair Morrison and Jackie Baillie, and there
is one pending with Jim Wallaceat which we go through a
whole series of matters of mutual interest, and pass on information,
try and resolve problems and discuss generally the partnership
the Secretary of State has described. I have also been at a number
of sittings of the Scottish Parliament, sitting in the gallery,
on areas that are of particular relevance. For example, when they
discussed the Sewel Motion on the Proceeds of Crime, I sat in
the gallery and listened to their comments about the Bill, so
that when I am representing the Government on that Bill I will
understand better their feelings and their views on it. I think
Sewel Motions and the way we have been able to get those without
any real debate or difficulty is one very good example of the
kind of partnership that we have built up.
(Mrs Liddell) Can I add to that, because often the
real relevance of a partnership comes out when there is an external
crisis or a difficulty. Of course, in the events since September
11 it has been essential that the Executive and the Scotland Office
have worked very closely on the anti-terrorism legislation. That
has been exemplary in terms of co-operation, and I think, too,
on foot and mouth, not just the relationship between the Scottish
Executive and my office but, also, the Scottish Executive and
Ministers here. That is a case where if you do not have the real
foundations of partnership in place beforehand then you do not
have that exemplary performance. I am very grateful to officials
in both UK departments and in the Scottish Executive for the way
they have risen to these very real challenges.
10. Can I just pick up a point about Sewel Motions.
A number of us here were at the edifying debate on the Proceeds
of Crime Bill at the beginning of last week, and one thing that
struck meand we had a very brief interchange on this during
the debatewas that there can be aspects of legislation
going through Westminster which will have an impact on the remaining
business of the Scottish Parliament. Perhaps the best example
of that would be in relation to the Proceeds of Crime Bill, and
the rights of innocent third parties in relation to civil procedure.
I have concerns about third parties. An awful lot of my concerns
would be addressed if I could ask a Minister about the provision
of Legal Aid in relation to civil proceedings because we are dealing
with this rather curious hybrid procedure of the Sewel Motion.
That is not something which is open to me as a Member in Westminster
debating legislation to be passed by Westminster. I float this
as a suggestion for your comment. Might it be possible to see
some revisal of Westminster procedures to take account of the
novelty of Sewel Motions? The sort of thing that is forming in
my mind is the idea that perhaps a minister of the Scottish Executive
might be allowed to give evidence to a Standing Committee in the
way that ministers give evidence to Select Committees as the Bill
goes through the Committee procedure? I would be interested to
know your thoughts on that sort of idea.
(Mrs Liddell) I will ask the Minister of State to
respond first, but perhaps the Advocate General can fill us in
on the general position?
(Mr Foulkes) I think we do need to look at Westminster
procedures in the light of the practice of working with the Scottish
Parliament. As you know, the Leader of the House has already started
looking at that. I think it would have been a miracle if we had
devised a devolved parliament and got right immediately every
aspect of the devolved and reserved areas; it would have been
just impossible. So we are bedding down, we are settling and we
are evolving and beginning to understand that. Sometimes unexpected
things crop up, such as the fact that the regulation of health
professions is a reserved area but the regulation of new professions
in medicine, if there were to be new professions, would be devolved.
So there are a lot of anomalies that crop up. In fact, I will
be having a meeting tomorrow with the Lord Advocate to discuss
certain aspects of this, and I am hoping to have a meeting with
a justice minister to discuss aspects of it. Of course, we will
have officials of the Scottish Executive briefing Bob Ainsworth,
the Under-Secretary of State at the Home Office, and myself on
the Scottish aspect as well as the Lord Advocate and the Advocate
General and her staff briefing us. So we will have briefing from
the legal side in Scotland and the policy side in Scotland and
from the legal and policy side down here as well.
11. I think that sort of interaction between
the Scotland Office and the Scottish Executive is good and very
important, but it is no substitute for Parliamentary scrutiny
of the Executive, and I think we do need to look at the way in
which we achieve that when we are dealing with Sewel Motion.
(Mr Foulkes) May I just make a small point, Chairman.
I understand that Rhona Brankin, a Minister in the Scottish Executive,
has given evidence to a Select Committee here, and Peter Hain,
one of our Ministers, has given evidence to a Scottish Parliament
Select Committee, so these things are evolving over time.
12. Dr Clark, would you like to come in?
(Dr Clark) I am quite happy to explain my general
role as Advocate General in relation to these matters, but that
will take time.
Mr Carmichael: I do not think that is actually
really what I was asking, anyway.
13. I will give the three of you an opportunity
at the end to mop up anything that we have not covered.
(Dr Clark) If there is any specific question as we
14. Could I endorse the suggestion that has
just been made about the possibility of Scottish Ministers being
asked to give evidence to a Standing Committee when that Standing
Committee is dealing with legislation which affects Scotland in
the way in which the Proceeds of Crime Bill does. Can I pursue
the question of the way in which the partnership has worked out
a number of the more formal aspects in that partnership? First
of all, as far as Sewel Motions are concerned, on how many occasions
has a Sewel Motion procedure now been used? If you do not know,
perhaps you could give us a note at a later stage. The second
question is that, considering the way in which just as a Sewel
Motion has led to Westminster legislating for areas which will
then be dual competence, I understand there have been a number
of occasions when, by Executive action from Westminster level,
executive or secondary legislative competence has been transferred
to the Scottish Parliament. Can you give us an indication of how
often that transfer has taken place? That would suggest that Westminster
is not jealous of its responsibilities in relation to Scotland,
in fact my understanding is there has been a transfer of quite
a bit of that responsibility to the Scottish Parliament.
(Dr Clark) Can I just say in general about Sewel Motions
that these are a procedural way of dealing with certain aspects.
At the end of the day, we cannot transfer competence legally
by Sewel Motions. Legislative competence will be a matter for
the courts to deal with if challenged. If, for example, the Scottish
Parliament form a view that they have competence and they want
Westminster to legislate, so be it, but, at the end of the day,
it is a legal matter whether or not the Scottish Parliament has
or has not competence to do something. Obviously, the UK Parliament
always has competence in relation to any matters. So the discussions
that go on between the Executive and various Whitehall departments
do result, from time to time, in Sewel Motions and the co-operation
involved in that is very high. What is important, surely, at the
end of the day, is that we get appropriate legislation which is
competent on the statute books, whether it be at UK level or at
Scottish level. The aim always is to deal with the legislation
in the most appropriate way, bearing in mind the Devolution Settlement
that we set out in the Scotland Act.
(Mrs Liddell) I think in terms of the specific question
of the number of times a Sewel Motion has been used, I think it
is more than 20 times, but if it would help the Committee we will
provide a memorandum with a list of all the occasions that that
Chairman: Thank you very much.
15. I wanted to follow slightly the point of
Sewel Motions and endorse what Mr Carmichael was saying about
Scottish Ministers. One thing that concerns me (and I appreciate
that the procedure is there at Westminster's competence) is that
there are aspects of the Proceeds of Crime Bill upon which there
might be disagreement. It is possible the Scottish Parliament,
for the sake of argument, has agreed to a Sewel Motion on the
basis that the Bill is published and there may be occasions in
Westminster where amendments put forward to that Bill would have
quite a serious impact on aspects of Scottish law. I wonder if
there was a procedure to take the views of the Scottish Parliament
into account when deciding on these amendments. I appreciate what
you are saying, that there are discussions between the law offices
and between the Executive, but there is the potential for a difficulty
between this Parliament and the Scottish Parliament, if the Scottish
Parliament think they have agreed to a Sewel Motion and then it
is substantially amended at Westminster in ways they might find
(Dr Clark) The starting point for this, remember,
is the fact that the UK Parliament has the power to legislate
across the board. Because of the Scotland Act, the Scottish Parliament
also has power to legislate within devolved matters. Where the
Scottish Parliament, in devolved matters, have agreed that the
UK Parliament should legislatepossibly in order to free
up further time in the Scottish Parliament to allow other measures
to be dealt withthe UK Parliament will be likely to legislate
in relation to these different matters. There are also various
procedures under the Scotland Act whereby there can be a transfer
of powers by consent. Therefore, there is a whole structure whereby
the various powers can be properly sorted out. However, at the
end of the day, as I said before, this is not just a technical
discussion about who legislates in which particular Parliament;
truly what is important is if the Members of the Scottish Parliament
consider that there are good reasons, either because they fear
they might not have competence or because they think it would
be quicker, more expeditious or more suitable or more appropriate
for the UK Parliament to legislate, at the end of the day what
is important is that the legislation which is wanted goes through
its various Parliamentary stages and ends up in the statute books
so that it can be used for the general benefit of the population.
16. I am not arguing that, I am just pointing
out that it seems to me there is a potential flashpoint there
which could cause unnecessary difficulty. The Proceeds of Crime
Bill is a perfect example that most of us want to see on the statute
book, but if there are amendmentsand I do not know if there
will bebut one that cropped up was the question that Mr
Lazarowicz raised of discretion in the courts, which might be
something the Scottish Parliament has very strong views about.
I can see a potential difficulty there, and I just wondered about
the thoughts on how that is overcome.
(Mr Foulkes) I think, Chairman, Mr Weir asks a very
perceptive question there. In fact, it is actually happening.
At Second Reading a number of Government and Opposition backbenchers
raised the question about the power in relation to confiscation
of proceeds of crime in certain circumstances in England being
mandatory and in Scotland being discretionary, and some of our
colleagues on the back benches wanted it to be stronger in Scotland.
Following the Second Reading I have asked the Scottish Executive
to look at that and consider that matter. I will be talking with
the Lord Advocate about it, and I hope with the Justice Minister
about it, and taking their views. Obviously, there will have to
be continuous dialogue between us in relation to that.
17. That is the Executive in the law offices,
but what I am asking is about Parliament itself, which passed
the Sewel Motion on the basis of the Bill as drafted. I am not
trying to be difficult here, I am just pointing out that this
important bit of legislation could become a flashpoint between
the two Parliaments.
(Mr Foulkes) You are certainly not being difficult,
in fact I think you are being helpful. I do not know if it is
intentional or not! Of course, it would be up to the Scottish
Executive and it would be open to them to go back to the Scottish
Parliament if there were to be a substantive change in the Bill
in relation to Scotland during the course of the Committee stage.
That might well happen.
18. There is no obligation on them to do so.
That is the point I was coming to. The Executive could decide
it is an important change to put before the Parliament. Equally,
they could say "We agree with Westminster. Get on with it."
(Mr Foulkes) I think there may be no legal obligation
but I think there might be a political imperative for them to
do that, if there was a major change in relation to the principle.
In relation to the question of mandatory/discretionary, that would
be a major change.
19. In the vein of being helpful, to explore
this transfer of powers, in your previous role the International
Development Bill was recently progressed and there were aspects
which were transferred to the Scottish Executive. Can I ask, in
general, what is the Scotland Office's role in making representations
both for and against such transfers?
(Mrs Liddell) In relation to the International Development
Bill I will ask the Minister of State to expand, but the basis
of our relationship with the Scottish Executive and the Scottish
Parliament is goodwill. We have to be pragmatic in dealing with
these matters; understanding one another's difficulties and responding
to one another's difficulties.. I think that spirit of co-operation
is key to ensuring that both institutions operate to the maximum
benefit of the Scottish people. We consult on a day-to-day basis,
particularly on aspects of legislation and a very important role
on every aspect of legislationand indeed policy mattersis
the bilateral relationship between the Scottish Executive Minister
and the relevant UK Minister. That is often the focus for resolving
a lot of the difficulties. I bow to the Minister of State's superior
knowledge on matters of international development.
(Mr Foulkes) I am afraid I am going to let the Secretary
of State down on this occasion, because my recollection is not
that there are any areas being devolved to the Scottish Parliament
or the Scottish Executive in the International Development Bill.
I am open to correction on that. In relation to the United Kingdom
legislation, I think it is very important to remind (I know the
Members of this Committee will be aware, Mr Duncan) the general
public that in the reserved matters this Parliament legislates
for Scotland as well on social security, on international development
and in relation to a number of other areas. Specifically in relation
to the International Development Bill, I will have a look at it
and see if there is a specific area where the power is devolved
to the Executive. Of course, the work of the Department for International
Development is very important to Scotland and the Department for
International Development has one of its headquarter buildings
in East Kilbride and is a major employer.
(Mrs Liddell) Can I expand that slightly in a more
generic sense? All legislation that goes before the House of Commons
has to be approved first of all by a Cabinet Committee, which
I serve on, and that is one of the key roles of the Secretary
of State in terms of being Scotland's champion at Westminster.
That is the area where I feed in issues that relate specifically
to Scotland, and I have a vote on that. Also, much of that work
is not necessarily done in a face-to-face setting, whereas the
Whitehall round-robin goes round in relation to aspects of legislation
which we pore over in some detail. Frequently we discover, perhaps,
minor aspects of legislation that relate to Scotland and that
is where the position of the Advocate General is very important.
It is then my responsibility to ensure that those aspects are
taken into account. If there are areas where I feel that common-sense
might dictate a conversation with the relevant minister in the
Scottish Executive I would have that conversation with the relevant
Chairman: Thank you very much for your very
full answers on partnership.
1 Note by witness: The legislative competence of the
Scottish Parliament can only be amended by Act of the UK Parliament
or Order in Council under Section 30 of the Scotland Act, which
is subject to procedures in both Parliaments. Back
Ev 22 and 23. Back