Examination of Witness (Question Numbers
20-39)
LORD DAVIDSON
OF GLEN
CLOVA QC
19 NOVEMBER 2008
Q20 Mr McGovern: Again, like Ben,
I apologise for being late coming in so possibly this point has
been covered. You are probably aware of the saying that if you
put two lawyers in a room you will get three legal opinions coming
out.
Lord Davidson of Glen Clova: Only
three?
Q21 Mr McGovern: Being very simplistic,
is there a definitive answer, or do you have a view: is it within
the remit of the Scottish Executive to bring forward a referendum?
If it is not within their remit, is it no more than an opinion
poll?
Lord Davidson of Glen Clova: I
am sorry, Mr McGovern. I did not mean any disrespect by smiling
like that. It is a question that I have really been through. It
is a very important question and I can well understand why it
is asked but the convention is that I do not discuss the advice
that I give to government, or indeed whether I am even asked to
give advice to government on any particular issue. So with respect,
I wish to not answer that question in any shape or form, other
than in this wholly, I recognise, for your purpose, unsatisfactory
way.
Mr McGovern: I do not know if no opinion
is better than three opinions.
Q22 Mr Devine: This is going to sound
a very cheeky question but it is not meant to be. How much do
we pay you and what exactly do you do? You have ducked and dived
like nobody I have ever seen.
Lord Davidson of Glen Clova: I
take that as a compliment.
David Mundell: This from Mr Devine!
Q23 Chairman: He has a divine right
to ask any question!
Lord Davidson of Glen Clova: I
do not think there is a ducking and diving component of my salary
but the general salary is somewhere round about £94,000.[4]
It is public fact. That is what I get paid for the work that you
kindly point out I do.
Q24 Mr McGovern: Keeping secrets. OSAG
is reimbursed by DWP for the work it does for them in pursuing
cases for that Department in Scotland. Does the OSAG charge all
government departments in a similar fashion and, if not, what
is the reason for the potential different approaches?
Lord Davidson of Glen Clova: The
fact that DWP is charged is simply a historical remainder of the
old Scottish Office. There was a lot of social security work that
went through the Scottish Office and the Office of the Solicitor
in the Scottish Office. For some reason it was thought sensible
to continue that DWP pays. That is really a historical relic,
I guess. As regards the other departments, they are not charged.
One can see the general reasoning that if it is one hand of government
paying another hand of government, it really creates a bureaucratic
circle which does not necessarily produce an awful lot. There
is debate from time to time about what is called "hard"
charging, which is that the Office should charge each department
for the work it does. That has not been pursued as, again, you
can see in a small office that would require quite a bit of a
bureaucratic pursuit. There are areas, in particular immigration,
where the Home Office pays for one of the staff because it is
recognised that there is a very substantial amount of immigration
work coming through the Office and that has been increasing of
late. If there were particularly large items, particularly if
they were discrete, if they were not part of the regular flow
of business, then I would anticipate that my Office would wish
to negotiate a particular rate if they had to take on extra people,
for example, to do some of the discrete work. I do not know if
that is a sufficient answer.
Mr McGovern: Yes, thank you.
Q25 David Mundell: I want to ask
you some questions about your relationship with the Scotland Office
but first, just so I am clear in my own mind about the process
in relation to the Scottish Parliament legislation, for example,
and without drawing you into specifics, we have this local income
tax Bill going into the Scottish Parliament. If the Presiding
Officer certifies that it is a valid Bill to go forward, at what
point do you become involved in that process if there were concerns
that it was not? Do you wait until it has got through its third
stage or do you make that point at stage one? When do you become
involved?
Lord Davidson of Glen Clova: When
a Bill is produced, that is when it comes to my Office. The reason
that that can be useful is that views can vary but also one may
identify areas where there is a question of reserved and devolved
matters, and there can then be a discussion between officials.
In most cases discussion can resolve or clarify any potential
frictions that might have arisen in the proposed Bill. Throughout
that entire process that is monitored and my officials go back
and forth about these issues. If at the end of the day it comes
to a dispute or a complete difference of view, the point of the
Privy Council's Judicial Committee is that it is there to resolve
that type of question when it does arise.
Q26 David Mundell: It would be referred
to the Judicial Committee of the Privy Council before it had been
deliberated upon by the Scottish Parliament through stages one,
two and three? Is that what you are saying?
Lord Davidson of Glen Clova: It
is possible that that could be done. I can certainly refer it
to the Privy Council. One concern is that if a Bill turned up
and it was still subject to amendment, if it had not gone through
the entire process, the Privy Council might be less enthusiastic
about looking at the Bill at that stage. There is another view,
of course, that if the Privy Council had such a Bill in front
of it, it would want to give a judgment giving its view as to
what the status of what was being proposed was.
Q27 David Mundell: But if the Presiding
Officer and his legal advisers, and the Lord Advocate and theirs,
had said yes and you said no, do you have the capacity to refer
it?
Lord Davidson of Glen Clova: Yes.
Similarly, if I say yes and the Presiding Officer says yes, the
Lord Advocate could say no. There are three law officers: the
Lord Advocate, the Attorney General and myself, who may refer
to the Privy Council.
Q28 Mr Wallace: Just to follow up
on that, for example, in the case of the European Convention on
Human Rights, when Bills come before this Parliament, there is
a statement on the front of the Bill from the Minister saying
"This Bill complies with European legislation". It does
not always work, as we find out later. Do you think that perhaps
instead of starting the process once it is published that it would
be a better mechanism for all parties—the Scottish Parliament,
Westminster and other interested groups—that before publication
of the Bill that was given your seal of approval—not approval
but that you're content that the Bill is within the Scotland Act,
be given on the front of that Bill? Would that make for the avoidance
of dispute further along the path?
Lord Davidson of Glen Clova: There
is no barrier to discussion taking place at any stage. Part of
the function of my Office is to advise generally in relation to
legislation, so if a proposal is emerging, either in Scotland
or in the UK more generally, the matter can be brought before
my Office, may be looked at by my Office in terms of assessing
compatibility with the European Convention. That process does
operate at present.
Q29 Mr Wallace: I understand there
is no barrier but do you think it could be part of the formal
process, would it help the process if there were formally a statement
from yourself, the UK law officers—because the Presiding
Officer effectively has to make a formal statement by allowing
the Bill to be published. If you did that as well, do you think
that would be a more efficient or better way of doing it?
Lord Davidson of Glen Clova: In
a sense, the question is issued. If I do not raise proceedings
or if the Attorney or the Lord Advocate does not raise proceedings,
the Bill has its imprimatur of our view that it is compatible.
Q30 Mr Wallace: Do you then keep
an eye on amendments through the progress of the Bill? I know
the Presiding Officer will but do you as well in your Office?
Lord Davidson of Glen Clova: Yes.
This is obviously an area where there requires to be fast movement
because amendments, as you are wholly aware, can come out of nowhere.
They can be dealt with very quickly. What has developed is a reasonably
speedy form of communication between my Office and Scottish Executive
lawyers if amendments are coming up.
Q31 Mr Wallace: That is quite a novel
concept: a speedy response from the Scottish legal profession.
Lord Davidson of Glen Clova: Come,
come.
Q32 Mr Wallace: Can I finally ask—and
I recognise you probably do not have to answer this—in your
time—we are not asking you for specifics—have you
been tempted to ever refer to the Privy Council any Bills? You
do not have to say what Bill.
Lord Davidson of Glen Clova: That
is getting into the difficult area, because I know what your next
question will be: "Oh, when have you have been tempted."
Q33 Mr Wallace: It does not preclude
the question. I promise you I will not ask the next question.
Lord Davidson of Glen Clova: I
am human. I am prey to temptation.
Q34 David Mundell: Can I focus on
the group of questions which I want to pursue? I think you have
clarified that your role is as legal adviser on the Scotland Act
to the UK Government. It is not an independent role as guardian
of the legal interpretation of the Scotland Act.
Lord Davidson of Glen Clova: Yes,
I am part of the Government; I am a Government Minister, but these
issues are looked at through the prism of law officer attention
and that has as one its underlying components being independent
and impartial.
Q35 David Mundell: Obviously, you
were also a law officer in the Scottish Parliament. I think at
that time the law officers were overtly political party nominees,
as had been the custom. There has been a move now that the Lord
Advocate and the Solicitor General in the Scottish Parliament
are not party appointees as such. Do you think that is something
that could be equally translated to your role?
Lord Davidson of Glen Clova: If
I may say immediately, they are party appointees. They do not
perceive themselves in that way, in that both of them describe
themselves as career prosecutors, I think. This does not get away
from the fact that they are appointed by a political party, and
a political party that is in control of the administration forms
its own view as to who it wants. Put another way, there is nothing
to prevent there being a change in the law officers that one has
in Scotland at the moment. As to whether or not there should be
an opening up of law officer positions generally to, effectively,
an independent person who was not part of government, I would
not regard that as necessarily being helpful. I have really been
on both sides of this; not only have I been a law officer in Scotland,
as you observe, and I am a law officer at the moment but I have
also advised governments, both Conservative and Labour, in the
past as an independent lawyer. The one observation I make as to
the difference between providing advice from the outside and providing
advice from the inside is that, on the inside, one is able to
look at the problem in its full context; one is able to pull in
the other bits of policy that may be affected by some particular
legal question or proposal that comes up. So I see virtue—no
doubt you will say "You are bound to say that because you
have this job at the moment and you are paid whatever it is"—but,
looking at it as clinically as I can, I can see strong virtue
in law officers being within the government.
Q36 David Mundell: What about being
within the House of Lords as compared to the House of Commons?
Lynda, now Lady Clark, was a member of the House of Commons when
she carried out the role. Is there any benefit either way in that
regard?
Lord Davidson of Glen Clova: I
think whether one is in the Commons or the Lords there will be
benefit. I am pulling in different directions possibly. In the
Commons obviously one is much more in touch with what is going
on day to day. Being in the Lords, one may consider that being
in touch with what happens day to day is perhaps less useful.
From the legal viewpoint, I do not feel, looking at the day-to-day
work, that it causes a particular problem for me not being in
the Commons.
Q37 David Mundell: Are rights of
audience an essential component of the job?
Lord Davidson of Glen Clova: I
have never actually thought of that. I would guess they have to
be because, if one is going to appear on behalf of the Government—and
that is certainly part of my job—it would be rather difficult
without rights of audience. I guess the position of Minister of
Justice, Secretary of State for Justice, has to a degree elided
that particular issue, in that one does have a direct relation
with the House of Commons in that regard. Sticking with the point
a little bit but diverting to a degree, one sees now the Lord
Chancellor in the House of Commons whereas historically, for the
last thousand years, as they say, he has been in the House of
Lords. So we live in times when these positions are subject to
debate and change—not by me, I might add, but by the Prime
Minister.
Q38 David Mundell: As I understand
it, you speak for Scotland or the Scotland Office in the House
of Lords.
Lord Davidson of Glen Clova: I
can be asked to do that, yes.
Q39 David Mundell: Does that not
compromise your position in the sense that the Scotland Office
-I am sure not that it would be—might not be fully in accordance
with a legal view, a very carefully considered view? It may be
necessary to make some more political point rather than the very
considered legal point you might otherwise wish to make.
Lord Davidson of Glen Clova: I
very much take your point. As I tried to explain earlier, the
question for me really when I appear in the Lords is one of technicality,
looking at Scotland Act Orders. My experience to date has been
extremely limited as a Scotland Office primary spokesperson. If
the position that you suggest arose, that I felt that there was
some tension between what I was being asked to deliver and what
I was doing as part of my legal office function, I would simply
say, "I am not prepared to carry this forward as a spokesman,"
and I am only the primary spokesman; there are other members of
their Lordships' House that could carry that forward. It has not
arisen as a problem as yet.
4 Note by witness: This does not include National
Insurance contributions or the Lords Ministers' night subsistence
allowance paid by the Office. Back
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