Examination of Witness (Question Numbers
1-19)
LORD DAVIDSON
OF GLEN
CLOVA QC
19 NOVEMBER 2008
Q1 Chairman: Good afternoon. First of
all, I am sorry for the delay; because of the division, we were
not able to call you earlier. I would like to welcome you to our
session. Before we start on detailed questions, would you like
to make an opening statement?
Lord Davidson of Glen Clova:
Yes, may I just say a few words? Thank you very much for the invitation.
I very much welcome this invitation and it is for this reason:
that the position of Advocate General for Scotland has been subject
to a lack of clarity of understanding from time to time. This
gives me an opportunity perhaps to make clear what the position
involves. A recent example of perhaps a misunderstanding of the
position may be found in the Annual Report of the Ministry of
Justice. This was brought to my attention recently. It identifies
the Advocate General as being a Minister of that Department and
reporting directly to the Secretary of State for Scotland. May
I just make it absolutely clear that that is not the position.
The Office is a separate Department—it is a very small department
but it is a separate department—and it is not part of the
Scotland Office and it is not part of the Ministry of Justice.[1]
I look forward to clarifying any other misunderstandings that
there may be about the Office. Thank you again for the invitation.
Q2 Chairman: Staffing levels in March
2007 were 26 and at present I believe you have 32. This is a 23%
increase. A note from the Scotland Office to the Committee explained
that OSAG[2]
has had to handle increased legislative and advisory work for
UK departments as regards Scotland. What are the underlying reasons
for this increase in legislative and advisory work for government
departments?
Lord Davidson of Glen Clova: The
reason is not particularly difficult to work out if you see the
work that is involved. There has been a substantial increase in
legislative, advisory and litigation work and there was in fact,
I think about 18 months ago, a review of the way in which work
was carried out by the various members of staff. That revealed
that there were a number of people who were doing substantially
in excess of contracted hours. That in essence is the reason for
the increase in staff.
Q3 Chairman: Can you tell us whether
some of those government departments able to anticipate this increase
in work for the OSAG? Are communications between government departments
and the OSAG sufficient for the OSAG to efficiently manage its
resources?
Lord Davidson of Glen Clova: The
problem perhaps is the nature of the work. Because it is essentially
a legal practice, albeit a government legal practice, one is always
dependent to some degree on what comes through the door. It is
particularly the case in litigation, so it is rather difficult
to pull in from other departments what the various changes in
demand might be. These do occur simply out of nowhere. There is,
however, of course, a component which is predictable and that
is looking at the amount of legislation that is likely to come
through, either from the UK Parliament or from the Scottish Parliament.
To that extent there is a predictability for gathering information
about what is likely to happen, a function my staff fulfil. One
is able to get some view of what the future may contain. What
I can say is that the increase in the staffing level has not in
any sense revealed that there is over-manning. The people who
are doing the particular works that they have been assigned to
are working, I would not say flat out, but they are working at
capacity.
Q4 Chairman: The number of Bills
that have gone before the Scottish Parliament in this Parliament,
you will be aware, is under a quarter of the number in the previous
Parliament. Has this led to a proportional reduction in your work
in considering the legislative competence of such Bills and how
do you manage the resources of your offices given such a big variation
in workload?
Lord Davidson of Glen Clova: I
think there is a possible lack of clarity if one simply counts
the number of Bills, because a Bill may be ten clauses or it may
be 200 clauses. If one looks only at the number of Bills, one
does not get a full understanding of the amount of work that goes
through the Department or indeed through the Scottish Parliament.
In that sense, I do not understand that there has been a fall-off
of work in that area but what I can identify is that in other
areas, particularly in litigation, there has been an increase
in the amount of work. Perhaps going back to the question of legislation
though, not only may the Bills be of varying size, they may also
be of varying complexity. Some Bills may simply coast through,
others may contain areas that require rather more careful attention,
and quite often discussion between the legal representatives of
my Office and of the Scottish Executive.
Q5 Mr Devine: Tony Benn has spent
the last 30 years of his life going about asking two questions
of people: "Who is your boss?" and "How do I get
rid of you?" Who are you accountable to?
Lord Davidson of Glen Clova: My
boss is really the Prime Minister. He is the person who can get
rid of me, simply. Accountability: I am accountable to Parliament,
I am accountable to the courts, I am accountable if I go into
the House of Lords—I can be asked questions on what my Office
is doing—and I can be asked to come before this Committee,
and of course I would invariably accept an invitation. When I
appear in court I am speaking on behalf of the Government. When
I do that I have to adhere to particular standards and, if I fall
short of those standards, the court will bring this to my attention
forcefully and publicly.
Q6 Mr Devine: Would you be advocating
a government policy if you appear before the court?
Lord Davidson of Glen Clova: It
is not part of my technical function. What I really do is more
a law officer function. I suppose, in one area, if there were
some technical Scottish order, for example, in the Lords, I might
be required to take that through. That falls as a result of my
having been appointed the primary spokesman for the Scotland Office.
Q7 Mr Carmichael: When did you stop
being part of the Ministry of Justice?
Lord Davidson of Glen Clova: It
was when the Ministry of Justice stopped being the Department
of Constitutional Affairs. I am not really part of the Ministry
of Justice and never have been.[3]
Q8 Mr Carmichael: But you were part of
the Department of Constitutional Affairs when it existed.
Lord Davidson of Glen Clova: I
was not part of the Department for Constitutional Affairs either.
If I can refer back to what I said in opening, this is a separate
Department, where as a law officer I am not going to be part of
some large department where I would be under instruction from
another government minister.
Q9 Mr Carmichael: We may need to
go back and check the record on this but I recall the creation
of the Department for Constitutional Affairs because it was the
first time that the former Prime Minister tried to get rid of
the Scotland Office. Then they realised that in fact there were
constitutional reasons why they could not do it in the way they
wanted to. Then there was the Constitutional Affairs Department
set up and my recollection is the Scotland Office sat within that
for a time. You were certainly part of that, or so we were told.
You are now telling us that we were told wrongly and in fact nobody
told the Ministry of Justice that, not only were you not part
of their Department, you never had been. Were they getting money
for having you not to be part of their Department when they thought
you were?
Lord Davidson of Glen Clova: If
I can just deal with some of those questions, certainly, my understanding—and
I have had this looked at—is that I am a separate department.
The reason I have had it looked at is because when one looks at
the information that is available, it does push in different directions.
For example, the Ministry of Justice Annual Report contains an
error and that misleads. I do not know what was said to the Committee
in the past but certainly I understand what the position is at
the moment.
Q10 Mr Carmichael: I am interested
as well in the question of your role in litigation. Can you offer
us some examples of cases that would have been decided differently
but for your intervention?
Lord Davidson of Glen Clova: That
is, with respect, an impossible question to answer. One has to
look inside the mind of a judge to work out why they come to a
particular outcome. All I know is that I have turned up, I have
made various submissions or submissions have been made on my behalf,
and a certain outcome comes about. There may be points where the
court may expressly make reference to part of the argument saying
they found that attractive or unattractive but that perhaps is
the only way.
Q11 Mr Carmichael: You do not have
dicta where judges would have said, "We are particularly
indebted to the Advocate General for bringing to our attention
a point which would otherwise have been neglected"?
Lord Davidson of Glen Clova: I
regret I do not keep a scrapbook to that effect.
Q12 David Mundell: Can I ask you
a question about the general accountability of the process, and
indeed probably the transparency of it? I, on two occasions, have
tried to ask questions in this House, one about whether a referendum
on independence could be held in Scotland within the terms of
the Scotland Act, and the other around the proposed introduction
of a local income tax in Scotland, which I felt were both questions
for your Department in terms of giving a view, which should be
available not just to Ministers but to Members of this House.
On both occasions it was deemed out of order because clerks within
this House had taken their view on the Scotland Act. In relation
to the referendum, they took the view that it was not allowed,
therefore you are not allowed to ask a question about it. What
is the scope for Members to ask you questions about issues like
that, like a referendum, like local income tax?
Lord Davidson of Glen Clova: I
think the problem that would arise in asking these questions of
my Department, or of me directly, is that it falls under the requirement
that law officers do not reveal whether they are asked questions
or indeed whether they are not asked questions. It is all for
the underlying notion of protection of law officer opinions. There
are a number of historical and sound reasons why that policy is
maintained. It certainly, as I understand it, has been continued
for many years. One perhaps notices that the other day there was
a question about the Attorney General's opinion having been made
available through a leak. That was an example of an event having
gone against the requirement that law officers' advice be shielded
from public view. I know that is an unhelpful answer perhaps but
it seems to be the tradition.
Q13 David Mundell: So there is no
opportunity for Members of this House, or indeed Members of your
own House, to get from your Department definitive interpretations
of the Scotland Act?
Lord Davidson of Glen Clova: For
that to be definitive, one would have to go to the Privy Council.
All that would be produced, in my view, were these questions asked—and
I cannot say whether they have been or they have not been—would
be simply an indication that these are matters which will be addressed
should they come before the Privy Council.
Q14 David Mundell: What then is your
relationship with the clerks of the House? For us, as Scottish
Members of Parliament, it is very important what questions we
can actually ask on the floor of the House or by way of written
questions. Do they come to you for the view or do they form their
own independent view to advise the Speaker of an interpretation
of the Act?
Lord Davidson of Glen Clova: I
very much understand why you are asking that question. Certainly
I am unaware of the clerks having asked me from either House about
what may be being asked at any particular stage, so I would assume
that they informed themselves on the particular questions to which
you refer.
Q15 David Mundell: Which almost means
that they could have formed a different view from you.
Lord Davidson of Glen Clova: They
are entitled to form whatever view they wish, the problem being,
from your perspective, that I am not in a position to tell you
one way or the other what my views might be to government in relation
to the questions that you put. I know that this has been controversial
throughout the decades and it may seem unsatisfactory to Parliament
but, on the other hand, there are policy reasons why this convention
has been maintained. It forms part of the Ministerial Code of
Conduct as well, I should say.
Q16 David Mundell: Basically, what
you are saying is that it is the Judicial Committee of the Privy
Council that could make a definitive ruling on the interpretation
of the Scotland Act, not Ministers and not you?
Lord Davidson of Glen Clova: A
definitive ruling certainly would not come from me. A definitive
ruling, meaning that this is the law, would have to come from
the Judicial Committee of the Privy Council.
Q17 Mr Wallace: I apologise for not
being here at the beginning. I just wanted to press my Honourable
friend's question about the role about finding the answer to whether
somebody is perhaps acting within the Scotland Act or outwith
it. I raised two years ago the issue about international development
assistance from the Scottish Parliament which according to my
reading of the Scotland Act and the explanatory notes which accompanied
it through the House was ultra vires of the powers of the
Scottish Parliament. I understand with the Scottish Parliament
we get slightly confused because the Scottish Parliament can discuss
anything, which we cannot in this House—we would be ruled
out of order should we discuss devolved issues but the Scottish
Parliament can and a number of us here, who were MSPs before,
remember having debates on whether Mike Tyson should be let into
the country, irrespective of whether we had power. On the actual
observance of the Scotland Act and whether the discussion goes
into action and therefore outside the remit, I get some concern
that in previous sessions where the Labour Party ran the Scottish
Parliament and the Government in the UK was of the Labour Party,
there was lip service paid to those rules or law. My particular
contention in 2006 had been, when the Scottish Parliament produced
a budget Bill, an actual Bill of Parliament, with a budget line
for international development, that was outwith the Scotland Act
because the Scotland Act clearly says Scottish Ministers can assist
Ministers of the Crown but it goes further in the passage of the
Committee and indeed the explanatory notes to say "as far
as devolved matters are concerned". It does not specify that
in the Act. There is clearly an issue there of interpretation
and how far to go. When we tried to establish that, when we tried
to establish where the boundaries were, there was really very
little answer from the Secretary of State. He did not avoid the
question; he simply chose to say the Scotland Act does not deal
with that. Is that something where you feel you have a proper
role to play in? Is that where you would come in and advise the
Secretary of State and say "I think there is a point or not
a point"? I recognise you cannot answer whether you were
consulted on that. Is it also a role that you think should be
pressed for the future, that it is a much more important role
than it is at the moment?
Lord Davidson of Glen Clova: You
identify a very important area. Whether a Scottish Minister's
actings are intra vires the Scotland Act is an important
issue. If it arises in terms of a particular acting as opposed
to promoting a Bill, there is of course the protection of the
Auditor General, which perhaps dovetails into the question of
the budget. If one is able to identify expenditure within the
budget, for example, if you took the view that it were ultra
vires, that matter could be raised with the Auditor General,
who would then have to assess whether or not the payment had been
correctly made. Otherwise, the competence issue could be raised
by the Lord Advocate, who, albeit a Minister within the Scottish
Executive, has an independent law officer role. It could also
be raised in certain areas, particularly if it was trenching on
reserved matters, either by myself or by the Attorney General.
Q18 Mr Wallace: Would you raise it
in response to a request or would you raise it as an overview
function? If there were a number of people who could raise it,
is there anyone who views themselves as the guardian of the Scotland
Act and should be on the look-out for these things, or would you
only be responsive?
Lord Davidson of Glen Clova: It
would depend on what the act were. If it involves a Bill or a
Statutory Instrument, then it of course crosses my desk. If it
is simply a ministerial act, there is no formal way that my Office
would find out about this. Every time a Minister does something,
they do not have to contact the Advocate General's Office to say
"By the way I have just done this and I'm going to do that."
It would be pretty much open to the judicial review process that
obtains generally, and therefore any person who had title and
interest could go to the court and seek a declarator or conceivably
an interdict against the proposed acting.
Q19 David Mundell: On the technical
aspects of that, is there no proactive contact between you, the
Presiding Officer, and the Lord Advocate before a piece of legislation
comes before the Scottish Parliament to make sure that all three
of you are in agreement? Obviously, it would be a very serious
situation if the Presiding Officer in the Scottish Parliament
said it was a valid piece of legislation and you said it was not.
Lord Davidson of Glen Clova: I
was trying to answer the previous question on the broad notion
of acts of a Minister. When it comes down to the question of proposed
legislation, that is precise, but the notion that the Lord Advocate,
the Presiding officer, and the Advocate General would come together
to form a view would really remove the independence of those views.
One of the strengths of the protection is that one can have three
different sets of people looking at a particular proposal to assess
whether it is considered to be reserved or devolved. As I know
you are aware, bona fide first-class lawyers can for the
best reasons come up with different views of the same issue. That
is why one has the Privy Council available to look at disputes
if they arise in relation to the dividing line between reserved
and devolved matters.
1 Note by witness: The Office of the Advocate
General is a separate department in relation to legal advice given.
However for administrative purposes (ie resources and accounting),
the Office of the Advocate General, along with the Scotland Office,
falls within the portfolio of the Ministry of Justice (and before
that the Department for Constitutional Affairs). Back
2
Office of the Solicitor to the Advocate General Back
3
Note by witness: Clarification of questions 7-10 same as
footnote 1. Back
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