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4 Feb 2004 : Column 265WH—continued

Advocate-General

Mr. Frank Cook (in the Chair): I advise the Chamber that several hon. Members have sought the consent of the Advocate-General and the Chair to contribute, but they must bear in mind the fact that their contributions cannot impinge disadvantageously on the time that the Government require to reply.

10.59 am

Miss Anne McIntosh (Vale of York) (Con): I am delighted to have secured the debate. I am sure that the Advocate-General will confirm that it constitutes our first opportunity to discuss her role and work at greater length than is allowed in the five-minute interlude of monthly questions to her. I therefore welcome her to her place this morning.

I declare an interest in that I am an advocate, albeit non-practising. I was admitted to the Faculty of Advocates in June 1982. I yield to no woman or man in my admiration and respect for the Advocate-General's knowledge of the law and the excellent legal practice that she continues to utilise in her current capacity at the Scottish Bar.

Exploring her role and work provides an opportunity for the Advocate-General to show how she spends her day and organises her week and the monthly cycle outside the times when we have contact with her in the five-minute interlude. I hope that I have allowed enough time for a couple of hon. Members to make some remarks, although the highlight will obviously be the Advocate-General's reply. I hope that we will respect that.

The reference to the role of the Advocate-General for Scotland on page 10 of the House booklet on Ministers' roles and responsibilities is remarkably brief. It states that the hon. and learned Lady


Page 60 contains an even briefer reference:


Let us compare that with references to other Law Officers, notably in the Law Officers' Department, which encompasses the Attorney-General and the Solicitor-General. Entries about them on page 45 are much lengthier. I do not wish to belittle the hon. and learned Lady's position, but it is important to acknowledge that if the role of Advocate-General is an important constitutional one, hon. Members should know much more about it.

The Scotland Office website is helpful. It states:


It also states that her statutory functions under the Scotland Act 1998 specifically include


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she


She also plays a role in the Privy Council. She


She


I have copies of some of them.

The Scotland Office website refers to the hon. and learned Lady's private office and her legal secretariat. I pay tribute to their work and legal brilliance. I know some of them and I have the highest regard for them. It would be interesting to learn from her this morning—or subsequently in writing—the total number of people at her disposal in the Scotland Office.

The website provides a fuller picture of the role and work of the Advocate-General. As she knows, that stimulated my interest sufficiently to try to probe her role and work and to participate in the monthly Question Time. On 4 February 2003, she referred to the human rights issues that she had considered. All related to criminal matters. She said:


On another occasion, the hon. and learned Lady said that the devolution issues that she had considered covered a wide variety of topics, including challenges by life prisoners to fixing the punishment, life licence hearings, the criminal liability of corporate bodies, pre-trial delay and whether requirements on the defence to disclose that it planned to use sexual history evidence breached the accused's rights to a fair trial. I also have copies of Question Time for the previous three months. Several weighty and interesting topics were raised.

When we have the opportunity to question the Solicitor-General on her work, and as the Attorney-General's representative in this House, it appears that she can provide more information, especially about court cases that have caught her attention or in which she has been involved. Could we have more flesh on the bones of the answers that the Advocate-General provides, albeit in the shorter time available for her Question Time? As she knows, I would personally prefer the Question Time to be extended to 20 minutes or half an hour to do her work and that of her Department greater justice. To whom should I speak about the possibility of extending her Question Time?

The hon. and learned Lady has been involved in an impressive number of cases. In one, she was regrettably referred to as "Mr. Clark QC". I am sure that her office would like to correct that oversight in the law reports. I want especially to query her conclusions in the Trevor Adams case against herself and Scottish Ministers in 2002. The Advocate-General advanced a preliminary submission to the effect that she was not the appropriate

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respondent to any legal challenge to the validity of an Act of the Scottish Parliament or Scottish Executive. On 31 July 2002, Lord Nimmo Smith held:


That appears to be the only case that throws any light on the Advocate-General's advisory work. Will she therefore outline the reasons for her conclusions?

I follow her work and that of her Department with great interest and I welcome the debate and the opportunity to query more closely her role and work, especially her constitutional role and legal advisory work. I await her response with bated breath.

11.10 am

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I congratulate the hon. Member for Vale of York (Miss McIntosh) on securing the debate. It is clearly the subject of significant demand, so I hope that the next time it comes up, we are allowed 90 minutes in Westminster Hall.

I am on the record as having said that I do not take the view that the role of the Advocate-General for Scotland is necessarily a full-time one, or that it should attract the level of public payment and the substantial number of staff that are attached to it. However, we are where we are, and I do think that there is some opportunity to develop the role of the Advocate-General in a way that is generally helpful to the preservation of the distinctiveness of Scots law, especially post-devolution.

One of the aspects of the business of the House in which I have made it my business to play an active role is the work of Standing Committees. I have been a member of no fewer than nine since becoming an MP, six on fairly substantial Bills. The frequent treatment in UK legislation these days of Scotland as a bolt-on or afterthought causes me increasing concern, and I wonder why the Office of the Advocate-General does not take a more active role in Scot-proofing Bills before the House considers them. One example that springs to mind is clause 185 of the Bill that became the Enterprise Act 2002, which provided that warrants would be provided in Scotland and England by "the High Court". In England, what that is is pretty clear, but apparently in Scotland warrants were to be granted by a senator of the College of Justice—an incredible notion that leapt off the page the first time I read it. How did such a provision get as far as it did? Eventually, the Government were persuaded to amend the legislation so that an application from the procurator fiscal to the sheriff would ultimately result in the granting of a warrant.

Another example plucked from the air is the Bill that became the Crime (International Co-operation) Act 2003; I also served on the Standing Committee that considered that legislation. On Report, we had an interesting discussion about legal privilege. The Law Society of Scotland had made submissions to the Scotland Office, but somehow those submissions had

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got no further—certainly not to the Home Office Minister responsible for the Bill. That is precisely the sort of job that the Advocate-General should be doing, and I am concerned that she does not appear to be doing it.

Now that a supreme court for the United Kingdom—whatever it is called and wherever it is sited—is to be developed, Scots law has great opportunities and faces considerable threats. I feel that the Advocate-General could play a greater role in that debate, but I have seen no evidence of her involvement: she certainly was not present during my Adjournment debate on the subject in Westminster Hall on 19 December last year.

With those brief remarks, I hope that I have made a few helpful and constructive suggestions about the way in which the role of the Advocate-General might be developed.

11.13 am

Annabelle Ewing (Perth) (SNP): I, too, congratulate the hon. Member for Vale of York (Miss McIntosh) on securing this timely debate, and I am grateful for the opportunity to make a brief contribution.

I have concerns about cases involving the vires of Scottish Ministers' actions, a recent example of which is hepatitis C compensation. As long ago as January 2003, the decision was made in Scotland to award compensation payments, but the vires of Scottish Ministers to take such action was challenged by Westminster, and the action was delayed. In late August last year, it was decided the action was, in fact, within the powers of the Scottish Parliament—but why on earth did it take so long to reach that decision, and what role did the Advocate-General have, or not have, in that process? A cynic might suggest that the matter had to be resolved south of the border—that is, a decision had to be made to pay compensation south of the border—before it could be confirmed that the Scottish Parliament could indeed proceed to do the right thing by the people concerned.

The hon. Member for Orkney and Shetland (Mr. Carmichael) touched on the Advocate-General's advisory role. I, too, am dismayed by what I see happening in this House. Let us leave Sewel motions to one side—I am not terribly keen on the way in which they are being used. Time and again in this place, we see a plethora of important amendments being made on Report to legislation on reserved matters to accommodate the particularities of Scots law. That is no way to ensure that legislation is meaningful and takes full account of the Scottish position. I sometimes wonder what the Advocate-General is doing in relation to such legislation. Surely it would be in everyone's interests if the process were conducted at the outset of the legislation on reserved matters, not at the eleventh hour.

Finally, I echo the comments the hon. Gentleman made about the creation of a supreme court. That issue is vital to Scots law, so I, too, regret the fact that the Advocate-General has seen fit to play almost no part—at least, not publicly—in the process. In the most recent session of oral questions, I raised the subject with the hon. and learned Lady and suggested that, in view of the fact that her colleagues in the Faculty of Advocates had already clearly stated their position, some sort of statement from her might be opportune. I look forward to hearing her reply to this debate.

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11.16 am

The Advocate-General for Scotland (Dr. Lynda Clark) : I congratulate the hon. Member for Vale of York (Miss McIntosh) on securing the debate, which I genuinely welcome. I hope that my explanation in greater detail of my role will give some satisfaction to the hon. Members present.

As a fellow member of the Faculty of Advocates, the hon. Lady has always been interested in the new constitutional arrangements, and she has a long-standing interest in and knowledge of Scots law. I am especially grateful to her for her kind comments, which I am sure were over-generous. In the Scots Law Times, I recently came across an early case in which I believe the hon. Lady appeared in the High Court of Justiciary. I do not know whether she recalls the case—HM Advocate v. Brown—but she appeared successfully to assist the Crown.

First, let me set my role in context. Hon. Members may recollect that prior to devolution and during the passage of the Scotland Act 1998 there was some debate on the future of the Law Officers. The legislative solution was to transfer from the UK the posts of Lord Advocate and Solicitor-General for Scotland: the Act provided that they became Law Officers for the devolved Administration. The Act also provided for the creation of a new office of state: Advocate-General for Scotland. The Advocate-General took over the former advisory role of the Lord Advocate and the Solicitor-General for Scotland to advise the UK Government, particularly in relation to all Scots law matters, both devolved and reserved. In addition, new statutory functions relating to the operation of devolution in Scotland were created.

The Conservatives were opposed in principle to moving the Lord Advocate to the devolved Administration—I understand that their solution was to split the Scottish Law Officers and retain the Lord Advocate as a UK Law Officer, but that solution did not find sufficient support in Parliament—so I am especially grateful to the hon. Lady for having supported and taken an interest in my office since its inception. The solution that did succeed, with some cross-party support, notably from the Liberal Democrats, was to create the post of Advocate-General. The then hon. Member for Orkney and Shetland said that Advocate-General would be


The current hon. Member for Orkney and Shetland (Mr. Carmichael) has flown the kite of a part-time post for some time, but I find that a strange suggestion, bearing in mind the fact that, as he well knows, legal problems arise all the time—at weekends, during the day or in the evening. As I hope to demonstrate, my work involves a wide range of issues, and making my post a part-time one would be wholly impractical.

Miss McIntosh : Will the hon. and learned Lady consider a case that has been suggested by several hon. Members, including me? Parts of some pieces of legislation deal with devolved matters. There will be

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legal implications if, for example, the Traffic Management Bill that is currently going through Parliament does not apply in Scotland, but a road accident occurs on the A1 just on the Scottish side of the border. At what stage does she envisage herself and her office becoming involved to advise of such potential difficulties? Do we have to wait for a court action to be started before we address difficulties flowing directly from legislation made in this place?

The Advocate-General for Scotland : I shall discuss later the fact that I sometimes advise on purely English matters because there may be a cross-reference to Scotland.

I am grateful for the interest shown in my office. Perhaps my role is difficult to understand because mine is different from other offices: the Office of the Advocate-General is an office with legal functions only; it is not a policy office. In answer to the point made by the hon. Lady about my fellow Law Officers, I can say that the Attorney-General and the Solicitor-General have policy functions in addition to their legal role, whereas my functions—both the advisory work and the new statutory functions that I was given under the Scotland Act—are entirely legal. In addition to my normal work, I attend legal consultations, and like policy Ministers I take part in a variety of Cabinet Committees and other committees and perform some work that normal policy Ministers perform.

Mr. Carmichael : I am intrigued by the Advocate-General's line of argument. She says she has to deal only with legal matters, not policy matters, but simultaneously insists that hers is necessarily a full-time job. Is she saying that her work load as a Minister is of the same order as that of the UK Solicitor-General or of that other very distinguished female Scottish jurist, Elish Angiolini, the Solicitor-General for Scotland?

The Advocate-General for Scotland : The work is different and the work load is different. I am involved in cases in court, which is not necessarily part of my colleagues' daily work load. It is important to recognise that, because my work is essentially legal work, it comes under the long-standing convention regarding the confidentiality of the content or existence of Law Officers' advice. That means, for example, that I am simply not free to answer some of the parliamentary questions put to me. Questions about hepatitis—the subject raised by the hon. Member for Perth (Annabelle Ewing)—fall into that category. The hon. Lady asked whether I have given advice and what I did, but under the convention I am not able to say whether or not I have advised, let alone disclose to her what advice I give.

Annabelle Ewing : I hear what the Advocate-General is saying, and I have heard it many times before, but she can understand why, to a Back-Bench MP, such a response is unsatisfactory? However, on that issue and in that context, can she say whether she is constitutionally required to put the interests of the UK Government ahead of the interests of the Scottish Parliament?

The Advocate-General for Scotland : What I am required to do is give the UK the best independent legal

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advice that I am able to give, and that is what I do. I shall take no more interventions; otherwise, I shall not be able to finish my speech.

I make it clear when I answer parliamentary questions that I do not regard it as sensible or as one of my functions to respond in Parliament to hypothetical questions about complex legal matters that I have not researched in circumstances in which no notice has been given. In my general role, it is important to understand that I advise not only on matters relating to Scots law, but on other matters that might impact on Scotland. For example, a question about the drafting of a Bill extending to England alone which deals with issues of European law or human rights may involve advice from the Advocate-General, because those areas of law apply to Scotland, although the legislation would be different. In practice, any question about the interpretation or application of laws that apply north and south of the border, or about the Scotland Act, may involve me. That requires close liaison with the Attorney-General and the Solicitor-General for England and Wales with the assistance of my legal secretariat. Each issue involves detailed research and consideration. Unlike policy Ministers, I spend a lot of time reading general legal literature to try to stay abreast of legal developments across a very wide range of subjects.

In respect of court proceedings, more than 2,000 devolution issues have arisen since 1999, although they take only a part of my time. I have appeared personally in six cases involving devolution issues, including appearances before the Judicial Committee of the Privy Council, the Inner House of the Court of Session and the High Court of Justiciary. That litigation has settled various important questions of law relating to human rights under the European convention. I remind the House that to appear in those courts personally takes a great deal of time and research.

In the case of Anderson, Reid and Docherty, the first Act of the Scottish Parliament—the Mental Health (Public Safety and Appeals) (Scotland) Act 1999—was challenged. I supported the argument, agreed by the Privy Council, that the right to liberty under the convention was not absolute and that the protection of the public was a legitimate aim that justified the continued detention of mentally ill offenders. In the case of McIntosh, I successfully argued against a challenge to the proceeds of crime regime. On the subject of discussion of cases in which I have been involved, if the case has been completed, I am more than happy to discuss the legal principles—although a little notice would help me to be properly prepared.

I also appear personally in non-devolution issue cases to represent Whitehall Departments—at their request, of course. For example, I acted for the Ministry of Defence before the House of Lords in the case of McDonald, in which I successfully argued that the word "sex" in the Sex Discrimination Act 1975 did not cover discrimination based on sexual orientation. That issue has now been properly addressed in recent legislation. It was important to have a well considered legislative solution and not have the matter dealt with by the courts under legislation that was not designed to deal with the point.

In another case—that of Mann—the argument was made in the Employment Appeal Tribunal that it should be possible to stand for election to the Scottish

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Parliament as a job-sharing MSP. At first, Ms Mann was successful in getting the tribunal to accept that it had jurisdiction to hear a case on such an issue, but later I was able to convince the tribunal that it did not. I regarded that as an interesting and important case, and I was pleased to be able to appear in it. There was no further appeal in that case.

More recently, in three immigration cases before the Inner House of the Court of Session, I appeared to argue on behalf of the Home Office about matters relating to the jurisdiction of that court to review decisions of the immigration appeal tribunal, which currently sits only in England. The court has not yet issued a decision in that case.

From time to time I have had to deal with exceptional matters: for example, the first case in which I appeared as Advocate-General was before the Committee for Privileges in another place to defend the constitutionality of the Government's reforms in the Bill that later became the House of Lords Act 1999. The case was complex: in summary, the question was whether that Bill, if enacted, would be in breach of the treaty or Acts of Union. The Committee agreed with my argument that there would be no such breach. In another example, I am currently in charge of an investigation under the Merchant Shipping Act 1995 into the sinking of the fishing boat Trident. I have appeared personally in that case, which is ongoing.

In addition to court work, the Office of the Solicitor to the Advocate-General for Scotland provides legal advice to UK Departments, from the Department of Trade and Industry to the Department for Transport. The office ensures that every Bill going through the UK Parliament that applies to Scotland is consistent with Scots law—at least, it attempts to ensure that. These matters are rather complex. The solicitor's office also instructs Scotland-only Bills. The range of work and subject matter is broad and is not restricted to reserved areas of law. UK Departments in Scotland still require advice on all areas of Scots law, as well as on what is reserved and devolved under the Scotland Act. Most of that work is not public, but it is essential.

In some cases, issues may arise on which formal Law Officers' advice is sought. It is important to remember that I do not personally advise on every single legal issue that arises: Departments seek Law Officers' advice, and there are certain circumstances in which they are recommended to do so. Departments remain responsible for their own instructions and decision making, although they are assisted as best we can through my office. Therefore, the policy Departments seek legal advice, use my office and remain in charge of the policy. That explains to some extent why I do not generally appear on Standing Committees: policy Ministers are there to deal with policy issues, although I might occasionally appear before a Committee to give advice in certain circumstances.

Apart from the work that my solicitor's office does on behalf of other Departments, it assists me in the exercise of my functions under section 33 of the Scotland Act. Those are additional to my advisory role as a Law Officer—

11.30 am

Sitting suspended till Two o'clock.

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