Examination of Witnesses (Questions 20-39)|
MP, MR GEORGE
FOULKES, MP, DR
QC, MP AND MR
WEDNESDAY 7 NOVEMBER 2001
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
(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
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 excitementparticularly
on 1 July 1999was tangible. However, the reality isas
I think everybody, and especially new Members here, knowthat
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.
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
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.
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
(Mrs Liddell) You may say that, but I could not possibly
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 smallabout 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.
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.
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
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
tradeand 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 industryeven 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 wellhe 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 Executivekept
them in touch and met with them before and after each meeting
of the PIUso 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.
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
(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 competencein other
words, we have managed to resolve any difficulties we might have
seen. This is constructiveand I hope it is seen as suchbecause
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.
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.
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
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 experienceand I was a Crown Office trainee so I
know a little bit about the advisory role which is interesting
but not particularly substantial30 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.
35. It goes down by the minute.
(Mr Gordon) Could I explain that that 28 includes
administrative staff, not just solicitors.
36. It is 28 staff, not 28 lawyers?
(Dr Clark) Most of them are lawyers but there are
back-up staff too.
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 borderadmittedly the recommendation will be
subject to your acceptance or rejectionideally 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
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
Performance and Innovation Unit of the Cabinet. Back
Ev 22. Back