Select Committee on Scottish Affairs Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  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 expertise—although the expertise we do have access to is indeed very considerable—but 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 departments.

  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 Office.

  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.

Mr Weir

  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 basis—two to three times a week on the telephone and meet with him from time to time—to 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 ministers—Jack McConnell, Sarah Boyack, Malcolm Chisholm, Susan Deacon, Alasdair Morrison and Jackie Baillie, and there is one pending with Jim Wallace—at 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.

Mr Carmichael

  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 me—and we had a very brief interchange on this during the debate—was 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 go along.

Mr Lazarowicz

  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[1] 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 has happened.[2]

  Chairman: Thank you very much.

Mr Weir

  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 unacceptable.
  (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 legislate—possibly in order to free up further time in the Scottish Parliament to allow other measures to be dealt with—the 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 amendments—and I do not know if there will be—but 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.

Mr Duncan

  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 legislation—and indeed policy matters—is 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 minister.

  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

2   Ev 22 and 23. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 21 February 2002