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Select Committee on Scottish Affairs Minutes of Evidence

Examination of Witnesses (Questions 20-39)



John Robertson

  20. In the Departmental Report Objective 1 seeks "to improve public understanding of and confidence in devolution through preparing Ministerial speeches, articles and correspondence". I appreciate the Scottish Parliament is in its infancy and it is just over two years old, but we have learned quite a bit. Can you tell me whether any shortcomings in the devolution arrangements have emerged?
  (Mrs Liddell) I think we are in a situation where we are learning with each day. I think I had to use, on one occasion, one order-making power to tidy something up, which was done in co-operation with the Scottish Executive, and that was done in complete agreement. There was another area where the Scottish Executive had a difficulty on tolls for the Erskine Bridge, where we were able, rapidly, to respond to some difficulties in that area. I think, by and large, it is quite remarkable the extent to which two-and-a-half, three years in a change of process that dates back 300 years has bedded in so successfully. That is not to say that I will not go back to my office and discover that something has emerged that we do need to look at, because every day in the devolution process is part of the learning process. In terms of the overall role, I do not think it is fully realised that I am actually the custodian of the Devolution Settlement. It is for me to make sure that the Devolution Settlement is properly adhered to and properly promoted, and that is something that I take very seriously indeed. Indeed, if I can stray momentarily into the realms of politics, it was something that was very much a feature of the recent General Election campaign. I think the response of the electorate to those issues was a very positive one.

  21. Do you feel, maybe, it is that the message from your own office and from the Scottish Parliament itself and the expectations of the people of Scotland do not exactly marry up; the expectations of the people are very high and they have been, in effect, disappointed with the whole thing, and perhaps we, as politicians, and yourselves as the Scotland Office and the Scottish Parliament are not getting the message out to people?
  (Mrs Liddell) I think there are a number of issues contained within that. The campaign to get a Scottish Parliament had gone on for such a long time and it was such a significant and exciting achievement, and that sense of excitement—particularly on 1 July 1999—was tangible. However, the reality is—as I think everybody, and especially new Members here, know—that when you come into this place it is extremely exciting but then you discover that there is an awful lot of nuts and bolts work that needs to be done. Of course, the real power of the Scottish Parliament is it has a workman-like role of scrutinising legislation; already something like 25 Acts of Parliament have been put on the statute book by the Scottish Parliament. I was only in this place for about three years prior to the 1997 General Election and I know how difficult it was to get Scottish legislation (and, Chairman, you know much better than I do) in the statute book because of the sheer pressure of time. However, I think people in Scotland are seeing that Scottish solutions to Scottish issues can be delivered by the Scottish Parliament. I think the message, too, of that General Election is that they want us here at Westminster delivering as well. It is not all cakes and circuses; the workman-like, day-to-day scrutiny of legislation and passing that legislation relevant to the Scottish people is actually the hum-drum work of every legislator, and that is their bread and butter.

Mr Duncan

  22. You mention, Secretary of State, that you are the custodian of the Devolution Settlement. It is probably fair to say that the extent and the periphery of that settlement will only be tested as issues come up and as time goes on. One matter that has come up and tested it slightly would be the passing of the Sutherland Report recommendations in Scotland, which has obviously caused some interesting discussions between the Scottish Executive and the Treasury. Can I ask how the resolution of that particular argument, if it has been resolved, has increased your understanding of the periphery of the Devolution Settlement?
  (Mrs Liddell) Actually, I disagree with you that that is an area of difficulty. All of the areas that are covered by the Sutherland Report are devolved areas to the Scottish Parliament. The great strength of devolution is that it can deliver Scottish solutions to Scottish problems. However, everybody lives in the real world in politics. I think it was one of the great thinkers of my movement who said that socialism is the language of priorities. Every one of us who comes in here has to determine our priorities and every government has to determine its priorities. It is for the Scottish Parliament and the Scottish Executive to determine its priorities. That is the strength of the Devolution Settlement. We provide the resources through the operation of the Barnett formula,[3] and it is up to the Scottish Executive to take its decisions. That is a case in point where there has been a very strong example of devolution working particularly well, especially in relation to brokering the partnership between the relevant UK departments that are involved. So I am, in overall terms, going beyond Sutherland. There is the opportunity where there are, perhaps, issues that emerge that are unexpected, that are at the fringes of the Devolution Settlement where, quite frankly, common-sense and pragmatism tend to be necessary.

Mr Carmichael

  23. Do I understand, Secretary of State, you to be saying that one of the achievements of devolution is that it allows the Conservative Party to support the implementation of Sutherland in Scotland but not, apparently, in England and Wales?
  (Mrs Liddell) You may say that, but I could not possibly comment.

  24. Since Sutherland has been raised, there is now apparently a consequential impact of the implementation of Sutherland in Scotland on attendance allowances to be paid, which of course is a reserved matter from Westminster. Can you tell us what representations you have made to the Department for Work and Pensions on that point, because it does seem to me there is very a strong case for that money being retained for Scotland.
  (Mrs Liddell) The issue of free personal care as it is delivered by the Scottish Executive is a matter for the Scottish Executive and has to be funded by the Scottish Executive out of the resources available to them. The social security system, however, is a reserved matter, and it is the belief of the Government that the social security system should be unified throughout the UK. In terms of attendance allowances, which I think is the issue you are alluding to, the numbers that are involved in attendance allowances are, actually, comparatively small—about 7 or 8,000 based on 124,000 people who receive attendance allowance. Within that, it is important for the proper operation of the social security system that we operate based on need. There is one of the cast-iron elements of how the social security system works that where need has been met in another direction it is not paid for twice. Indeed, that is a critical part of having an effective social security system. I think the discussions that have taken place between the Scottish Executive and the Department of Work and Pensions have been extremely amicable, and indeed it has been made clear by the Scottish Executive that they do have the resources to implement free personal care as the First Minister wishes to do so, and that is their prerogative. Indeed, it is a prerogative that is much more easily met given the very significant increases in public expenditure that have been made available through the Barnett formula as a consequence of the Government's management of the economy.

Mr Weir

  25. Picking up that point slightly, Secretary of State, you mention it is not to be paid twice. Is the point not that it is coming out of a different budget from money that will normally go to Scotland on social security and may not be met by a different budget at the Scotland Office? Is there not an argument for saying that by refusing to pay this sum to the Scottish Executive you are breaching the principle of universality of benefits throughout the UK?
  (Mrs Liddell) The logical conclusion of the line you are arguing, Mr Weir, is that if you had a situation where, for example, an administration in Scotland decided that they wished to reduce social security payments in Scotland to pensioners or whoever, therefore they could go ahead and do that, and that would not be in the best interests of the Scottish people. It is also fair to take into account that the Barnett formula delivers a very fair, stable and transparent settlement to Scotland. I think it is not generally recognised that the Barnett formula provides 50 per cent of the public expenditure that takes place in Scotland; the other 50 per cent comes through the reserved departments, and that is a very important relationship. I do not think Scotland would benefit from upsetting that relationship.

  26. That does not answer the point that, in effect, there is a cut in the budget because that £20 million, or whatever it is, is not now going to Scotland in relation to the Barnett formula.
  (Mrs Liddell) That money is therefore used in other directions, like the £200 winter fuel payment, the introduction of the Minimum Income Guarantee for pensioners, concessionary travel for pensioners. These resources are allocated in other ways. The important thing is to ensure that through the social security system those who are most in need get the best help, and that underpins the Government's policy in social security, not just in Scotland but throughout the UK.

Mr Lyons

  27. Secretary of State, I return to the question of the Scotland Office and UK departments. Can you give us examples of recent advice tended by the Scotland Office to UK departments, particularly on matters concerned with energy, trade (particularly in Scotch whisky), work and pensions and asylum dispersal, in pursuit of Scottish interests?
  (Mrs Liddell) All of these matters are day-to-day basis issues that we discuss regularly with the Scottish Executive. Energy is a particular case in point and I will ask the Minister of State to inform the Committee of the role that he plays in the PIU1[4] study on energy policy. In relation to asylum policy, the Minister of State yesterday attended a meeting with Lord Rooker, together with the Moderator of the General Assembly of the Church of Scotland, to discuss asylum matters. Of course, during the summer, when there were some unfortunate events in relation to asylum seekers in Scotland, my office was very much involved. In relation to trade—and I can speak specifically of a visit that I made just three weeks ago to Brussels as part of Scotland Week promoting the Harris tweed industry—even in the most minimal ways we are able to help businesses that are specific to Scotland. I believe a number of Honourable Members were in attendance last night when I hosted a reception in Dover House for the Salmon Growers' Association. That is something that may appear minor but is helping trade through our role as facilitators. I see a big part of the role of my office in providing opportunities for Scottish businesses to showcase their products and find their way into markets. On Scotch Whisky, it is of course inevitable that when the Chancellor begins the round of preparing for the Budget any Secretary of State for Scotland would remind him of the importance of the Scotch Whisky industry. Indeed, we have been very successful in securing the Chancellor's ready response to freezing the duty on Scotch Whisky. One of my little personal ambitions is to ensure that every diplomatic post abroad offers Scotch Whisky in a range and variety that encourages people who have, perhaps, not been introduced to our national drink to sample it and, therefore, go out and buy it. In relation to the energy policy, I will ask the Minister of State to bring you up to speed.
  (Mr Foulkes) Can I also add, Chairman, in relation to asylum that as well as moderating the Moderator's visit to Lord Rooker (which, incidentally, went very well—he was very pleased with the decision to phase out vouchers and with the plans that we have to deal with asylum seekers, with some reservations) I also arranged for Jackie Baillie, who is the Scottish Cabinet Minister with responsibility for the integration of asylum seekers in Scotland, to meet with Lord Rooker, and we had a useful discussion. We also, during the course of those discussions, put forward the concerns of asylum seekers in Scotland that they have to come down to Croydon or Liverpool to report, and I understand from Lord Rooker that an announcement will be made shortly which will mean they do not have to do that and they will be seen either in Scotland or close by, depending on what arrangements can be achieved. In relation to energy, as you know the Prime Minister has asked the Performance and Innovation Unit of the Cabinet Office to produce a report on energy policy up to 2050 by the end of this year, which is a challenging task. There are six Ministers on the advisory committee, and some outside members. I represent Scotland on the advisory committee, and although energy policy is a reserved matter, because certain aspects of energy are devolved, including the very important one of consents for power station development, I have consulted very, very closely with both the Ministers and the Officials in the Scottish Executive—kept them in touch and met with them before and after each meeting of the PIU—so that as well as representing the reserved areas I hope I would be attempting to represent the interests of the Scottish Executive as well.

  28. Just on the question of the PIU, which Ministers are involved in the Scottish Executive?
  (Mr Foulkes) Alasdair Morrison is the Minister with particular responsibility. I have spoken with him on a number of occasions about it.

Mr Weir

  29. I have a question of the Advocate General, touching on some of the areas of your responsibility. I wonder if you could give us a brief overview of what the Advocate General actually does?
  (Dr Clark) Would that be acceptable? I will try to be brief but it is actually quite complex, as you will understand, I hope. Firstly, the Advocate General is a Law Officer of the Crown and the Advocate General is the chief legal advisor to the United Kingdom Government on Scots law. What happened with devolution and the Scotland Act was that the Advocate General took over the advisory duties of the two Law Officers who previously advised in Scottish matters, that is the Lord Advocate and the Solicitor General for Scotland. They became Law Officers and advisers on legal matters to the Scottish Executive. So basically I inherited the duties of these two Law Officers. It is true that the Lord Advocate had some policy responsibilities which he took back with him to Scotland, particularly the prosecution responsibilities, but in addition to the traditional advisory responsibilities which I inherited, I took over a whole range of new responsibilities which are entirely due to the Scotland Act. Firstly, I am a Minister one degree below Cabinet rank. Traditionally Law Officers have not sat in Cabinet. I function independently of the Secretary of State for Scotland and from the other departmental Ministers. In giving advice to the Government I am in the same position as the Attorney General and Solicitor General for England and Wales. They give advice to the Government in the same way but obviously about matters relating to English law or how it applies in Wales. I work very closely with the Scotland Office. We have had, hopefully, a very amicable relationship which has been very useful for my part and I hope I have been useful to the Secretary of State and to the Minister of State. We are in the same department but I am a little unit on my own and I am responsible for that unit directly. I have three lawyers and three administrative support staff based in London but my main legal department is based in Edinburgh. The reason for that is the legal department in Edinburgh services all the UK departments as it did in the past in relation to reserved matters. So, for example, in relation to legislation in reserved matters which is going through Parliament and UK statutes, lawyers from the Advocate General's Solicitors' Office will be involved in assisting with that. They liaise very closely with the Scottish Executive lawyers who are in the same building and they share certain facilities such as library facilities which helps to keep down costs. The lawyers who are in my Solicitors' Office also service the various Whitehall departments in relation to litigation, for example, the Child Support Agency, the various Sheriff Court actions that go on through that, the asylum cases that end up in the Court of Session, a whole range of UK-reserved work. In addition to advising about Scots law, issues which traditionally had also been advised about were things that became very important post-devolution because of the Human Rights Act and the European Convention on Human Rights and, indeed, in relation to European law, and of course the Scotland Act. So the advice that I give as Advocate General is quite often in association with the Attorney General and sometimes also the Solicitor General for England and Wales. We quite often give joint advice across a whole range of matters particularly in relation to European law and in relation to the European Convention on Human Rights and the Human Rights Act. If I could perhaps explain the general Law Officer role because I am not sure that everyone fully understands it. It is not for the Law Officers to leap in and start advising departments. Departments come to us for advice and when we give advice at Law Officer level this can be after a long and difficult consideration of issues that are complex and perhaps controversial and sometimes disputed between different departments' legal advisers. That might be one reason why one department or more than one department will eventually come to the Law Officers for advice. Basically once the Law Officers' advice is given that will be the binding advice on that particular issue. We are a way of dealing with disputes. There are other matters which traditionally come up to Law Officers for advice. So there is a whole range of advisory work going on behind the scenes. As you may have picked up from my Parliamentary questions, there is a convention about that which means that I am not at liberty as a Law Officer even to disclose that I have advised a particular department, let alone to say what advice I have given. This is a convention which has been honoured by Parliament through a whole range of administrations for many, many years. I think that there is merit in that convention, and it would not be for me to depart from it anyway, even if I wanted to, because obviously there is a whole range of departments who have an interest in the convention. At the end of the day it is a matter really for Parliament to deal with such conventions. In addition to that advisory role, which is fundamental to my office, I sit on a number of Cabinet committees, including the Legislative Programme Committee which is a key Committee, as the Secretary of State said. I also sit on Cabinet committees such as the Nations and Regions one, which is very important in relation to devolution. My role there is legal. I give legal advice. I am not there to say, "I do not like that policy" or anything like that. If an issue arises which has a Scots law aspect to it or a European aspect and there is a problem, then I will advise. I will advise in relation to whether or not matters have been dealt with in relation to Scottish Parliament and Sewel Motions and where we are in relation to that. The other major aspect of my role, and this is completely new and therefore I had to develop this role when I came into office, is the role which is given to the Advocate General in terms of the Scotland Act. There are two main aspects to it, firstly, the role under Section 33. That Section relates to the Scottish Parliament. As you probably are aware, the Scottish Parliament has inbuilt into it certain protections in order to try to ensure that the Scottish Ministers are acting within the devolved competence of the Scottish Parliament so that the main responsibility and the legal responsibility for them to act within competence is theirs. But the Section 33 role means that every bill of the Scottish Parliament has to be intimated to various Law Officers including the Advocate General and 4 weeks must pass before that bill becomes law. That is in order to allow the Law Officers to consider the Bill. We are not looking at policy matters; we are looking at the legal competence of the Bill. Legal competence can arise in three main areas: firstly, is it competent by being properly within devolved powers, and that can be a difficult issue; secondly, is it competent because it is within the European Convention on Human Rights; thirdly, is it competent because it is not contrary to European law. So these are the issues that we would look at, some of which can be, as you would imagine, quite difficult. Plainly it would not be helpful or in the spirit of the devolution settlement if I sat back on my hands until the Bill was intimated to me and then said,"What about this, that and the next thing?" That would not be a helpful response. As a result my lawyers engage with me at an early stage of the legislation and using some of the expertise from Whitehall departments we engage in constructive discussion over a whole range of legal issues. We try to get to a position where at the end of the day I feel that I would not need to refer the Bill to the Judicial Committee of the Privy Council for a legal decision about the competence—in other words, we have managed to resolve any difficulties we might have seen. This is constructive—and I hope it is seen as such—because at the end of the day it is very important that challenges to Scottish Parliament Bills are not successful. We want Scottish Parliament legislation to withstand challenges and therefore scrutiny of them by the lawyers in the Scottish Executive, and the Lord Advocate has a very important role in this as well, the combined effect of this is to try to ensure that the Scottish Parliament legislation survives challenge. Having said that, it is not at the end of the day my responsibility to make sure the Bill is competent. I am under no duty to intervene even if I think there is a problem because I could take a view that the challenge should be allowed to proceed and I could intervene then if I feel it is appropriate because in that event there will be a second opportunity for me to intervene because it will then become a devolution issue. That is the next aspect of my role.


  30. Can I stop you there, Dr Clark.
  (Dr Clark) There are many other things I would like to talk about, bearing in mind I only get five minutes usually.

Mr Weir

  31. It would be interesting if the Advocate General could prepare a memorandum explaining her role in more detail because one of the problems is that a lot of us are unsure what the Advocate General actually does.
  (Dr Clark) I have sympathy with that.[5] One of the first things I did when I entered office was prepare a factsheet which I sent to all members of the last parliament. We are looking at that factsheet to see whether we should update it and re-circulate it. Obviously there are costs involved and that is an issue. The other thing I am hoping to do is to offer new members in particular the opportunity to come and discuss with me my role because I do realise that non-lawyers (even lawyers) do not understand it fully because the role is new and developing and because it is very technical. I am delighted to discuss with any Member of Parliament, in fact anyone, my role because it is absolutely fascinating.

Mr Carmichael

  32. Advocate General, did I understand you to say that in terms of the litigation work being done on behalf presumably of the Inland Revenue and the Child Support Agency that the work is done by the Solicitors' Office? Is that part of the Scottish Executive?
  (Dr Clark) No.

  33. That is your area?
  (Dr Clark) It is the Office of the Solicitor to the Advocate General. If I could just say very briefly, the instructing department in these cases is not me, it is for example the Home Office. My Solicitors' Office will also do some litigation, which is my responsibility when I am doing work as Advocate General under my statutory functions. I have obviously been in court sometimes personally appearing as party litigant as Advocate General to do certain cases. In other cases, although I am Advocate General I am really appearing as Counsel, instructed by the Solicitor on behalf, for example, of the Home Office or some department, and then it is still the Home Office who are technically giving the instructions, not me. If I am appearing as a party litigant and it is properly a case for the Advocate General under the Scotland Act, then I am the person giving the instructions. If I say this case should be settled, the case will be settled. But if the Home Office is the instructing department then that would be different and it would be a matter for them to decide.

  34. Would you be in a position at some later date of giving an indication of how many lawyers are now employed in total between your department and the Scottish Executive because I think the figure that was given by Mrs Liddell at the beginning was 30 solicitors employed at your office and I have to say that from my experience—and I was a Crown Office trainee so I know a little bit about the advisory role which is interesting but not particularly substantial—30 does sound like quite a lot for what is fairly routine work.
  (Dr Clark) I think there are 29 staff in total and the major part of their work is advising about litigation, regulations, all these matters, for Whitehall departments. That is a major part of their work and also carrying through the litigation. I have three lawyers down here who assist me personally in relation to opinion work and various other aspects. We regard ourselves as a pretty lean machine.
  (Mrs Liddell) It is actually 28.

Mr Weir

  35. It goes down by the minute.
  (Mr Gordon) Could I explain that that 28 includes administrative staff, not just solicitors.

Mr Carmichael

  36. It is 28 staff, not 28 lawyers?
  (Dr Clark) Most of them are lawyers but there are back-up staff too.

Mr Duncan

  37. In the last question we were looking to elicit a long involved response, and perhaps in question 5 we will be looking for a short one, Secretary of State; yes or no would do! You will be aware that part of the Scotland Office responsibility is to fund the Boundary Commission. I understand that yesterday you made an announcement about the consultation process, but obviously your office and you personally and your ministerial team have a key role to play in opinion forming, apart from anything else. Do you accept the principle that, following devolution, the size of a Scottish constituency in terms of size of the electorate should be the same as it is south of the border?
  (Mrs Liddell) That is a matter for the Boundary Commission. They are completely independent. I do not have any discussions with the Boundary Commission other than instructing them at the start of the process and I think we have to await the report of the Boundary Commission on that. I think until they have published the report it would be inappropriate for me to give any personal view at the moment.

  38. Can I tease a wee bit more out of you, perhaps unsuccessfully. Obviously this is a consultation exercise I understand you are embarking on, and consultation does imply leadership and opinion forming. Do you see the end result of that as a constituency north of the border—admittedly the recommendation will be subject to your acceptance or rejection—ideally being the same size as south of the border?
  (Mrs Liddell) If you look at the Scotland Act, the Scotland Act is reasonably specific in that it takes away the argument for the lower number of constituents that a number of Scottish constituencies have because of the extra burden on Scottish Members for separate Scottish legislation, so the purpose of this change is greater harmony between the size of constituencies north and south of the border. It will be up to the Boundary Commission to take into account the size of English constituencies in coming to their conclusions. I am loathe to say anything that leads me into speculating about what the conclusions of the Boundary Commission might be.

  39. Would it be fair to say that you are predisposed towards a view that they should be similar?
  (Mrs Liddell) The Scotland Act is quite specific on it. It is not a question of my view, it is a question of the legislative issues that were raised when the Scotland Act was going through.

3   Cm 5120, Chapter 4. Back

4   Performance and Innovation Unit of the Cabinet. Back

5   Ev 22. Back

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