Examination of Witness (Question Numbers
40-59)
LORD DAVIDSON
OF GLEN
CLOVA QC
19 NOVEMBER 2008
Q40 David Mundell: Do you have any
other policy input into Scotland Office activities other than
the technical legal?
Lord Davidson of Glen Clova: I
do bump into people in the Scotland Office and they do occasionally
mention policy.
Q41 Mr Wallace: You talk about the
worry about friction but is that the same as contradicting yourself?
If you have given advice to the Scotland Office that they disagreed
with, yet the Scotland Office continued to carry on that policy,
and you were called to answer for the policy of the Scotland Office
against your own advice, would that be the type of tension you
would want to opt out of?
Lord Davidson of Glen Clova: That
would certainly be a tension, yes.
Mr Wallace: You are very clear what your
opinion is about when you answer and when you do not answer.
Q42 Chairman: The current Lord Advocate
is not an MSP but, on the other hand, all three UK law officers,
by convention, are Members of one of the Houses. Why do you think
the UK law officers need to be Members of one of the Houses and
in the Scottish Parliament there is no need for this?
Lord Davidson of Glen Clova: It
is so that we can be made accountable. The way in which the Scottish
Parliament arose with this particular way of bringing the law
officers in was really as a result of it being a unicameral parliament.
There was no other way to get the law officers to be answerable.
There is then this creation of them being quasi-Members of the
Scottish Parliament, who can attend and who can speak, and I can
see why it was done that way. Having been on the receiving end
of questions as Solicitor General for Scotland, I can understand
the virtue of it. As to whether it would be helpful here, I am
not sure it would be. It may be, but what we have at the moment
seems to work as a way of getting law officers to be directly
accountable. I do not see an immediate need for change but, again,
these are not issues that I can ever even take a step further.
They belong elsewhere in the decision-making.
Q43 Mr Davidson: Could I ask about
your relationship with the Attorney General and in which areas
you have most relationship, your Department with her Department?
Lord Davidson of Glen Clova: First
of all, I have considerable admiration for the Attorney General,
who does an outstanding job. The area where we have most co-operation
is in UK legislation. We have more or less a continuing dialogue
between officials and at Minister level about various issues that
are coming up in UK legislation, looking particularly at human
rights issues and EU treaty questions.
Q44 Mr Davidson: What happens if
there is a disagreement between your office and her office?
Lord Davidson of Glen Clova: I
have never discovered that there has been a disagreement, though
I accept obviously that there could be one. The way in which the
process works is really through an attempt to come to some view
where everybody agrees. As in most things, one has to push one's
good points and yield on one's points that are less good. It is
a process of two lawyers who are coming to an outcome.
Q45 Mr Davidson: That is a very rosy
picture, that whenever lawyers get together things get worked
out. I am not sure it is entirely true.
Lord Davidson of Glen Clova: It
is not as a generality, I agree.
Q46 Mr Davidson: Would it make any
difference if matters were more concerned with Scotland than with
the rest of the UK where there was a disagreement? It is just
a question of how this relationship is pursued.
Lord Davidson of Glen Clova: We
are members of the same government. The Lord Advocate may, as
present, be a member of an administration of an entirely different
complexion. So there is no compulsitor to come to an agreement
as between—
Q47 Mr Davidson: Compulsitor? What
exactly is a compulsitor?
Lord Davidson of Glen Clova: Something
that compels you to do something.
Q48 Mr Davidson: I see. Is that a
lawyer's word?
Lord Davidson of Glen Clova: I
think it probably is the antique Roman.
David Mundell: "Whip" is the
word here in the House of Commons.
Mr Davidson: There are no antique Romans
here, I am afraid. So you try and get this sorted out. These are
points that possibly might have come from the SNP but, unfortunately,
there is no Member of the SNP here at this important hearing into
Scottish legal arrangements.
Chairman: There was a Member here; he
had to leave early.
Mr Davidson: May I make an observation?
Really, he always has to leave early and I think it is appropriate
that we perhaps ask him to stand down at some point from this
Committee because he serves no useful purpose.
Chairman: I can tell you in advance that
he is standing down.
Mr Devine: Well done, Ian.
Mr Wallace: You sacked him.
Q49 Mr Davidson: Really, we have
just got to rely on good sense prevailing and there are no rules.
What happens if you cannot agree? Who is the referee?
Lord Davidson of Glen Clova: The
Prime Minister.
Q50 Mr Davidson: Who may or may not
be a lawyer. So if two lawyers are fighting it out, somebody who
is not a lawyer—and I am in favour of this—will decide
which one is right.
Lord Davidson of Glen Clova: There
are a number of assumptions contained within that statement with
which I would have to take issue, I regret to say.
Q51 Mr Davidson: Sorry. It is mainly
based on what you said actually. Let us go through it. If you,
who are a lawyer, and the Attorney General, who is a lawyer, disagree,
I asked who would resolve it and you said the Prime Minister.
Lord Davidson of Glen Clova: If
it came to that. My experience—and I can only really speak
to my experience, otherwise I am speculating—is that we
have never had anything bordering on a disagreement.
Q52 Mr Davidson: I am asking you
what happens in the case that.
Lord Davidson of Glen Clova: Sorry.
Just to continue with that, if we have never disagreed, it is
rather difficult for me to say what happens when there is a disagreement.
Q53 Mr Davidson: No, that is not
true. That is a lawyer's answer. My car has never broken down
but it is not difficult for me to speculate what I might do if
it did break down. In the event, you must have considered what
happens if an agreement is not reached.
Lord Davidson of Glen Clova: I
have not actually considered what would happen in those circumstances.
Q54 Mr Davidson: It would be completely
new ground for both of you. Why in that case did you tell me it
would be the Prime Minister who would resolve it?
Lord Davidson of Glen Clova: Because
if you have Ministers who are at loggerheads with one another,
I cannot think of anybody else better to resolve it. I may be
wrong.
Q55 Mr Davidson: Obviously you must
have considered it, otherwise you would not have been able to
tell me that it would be the Prime Minister that would resolve
it. How appropriate is it then that the Prime Minister, who may
or may not be a lawyer, resolves a dispute between two lawyers?
Lord Davidson of Glen Clova: The
Prime Minister appoints both of these lawyers.
Q56 Mr Davidson: Yes, indeed. That
is a statement but that is not an answer to the question.
Lord Davidson of Glen Clova: Maybe
it is implied within the statement.
Q57 Mr Davidson: Maybe you can make
it clearer for me then.
Lord Davidson of Glen Clova: If
people are incapable of working together, then somebody has to
go. It is as simple as that.
Mr Devine: It could be the Prime Minister!
Q58 Chairman: Is it a possibility
that one of those two will go and or both will go?
Lord Davidson of Glen Clova: That
would be a matter for the Prime Minister to decide.
Q59 David Mundell: Can I ask a further
point from that, having noted Mr Devine's call for the Prime Minister
to go. In relation to UK legislation—I am sorry; I should
have asked you this earlier—do you routinely look at that
as well in relation to the implications for Scotland?
Lord Davidson of Glen Clova: Yes.
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