Examination of Witness (Question Numbers
60-79)
LORD DAVIDSON
OF GLEN
CLOVA QC
19 NOVEMBER 2008
Q60 David Mundell: There have been
some concerns in recent times, not in any way deliberate, by government
or government ministers, about issues in relation to Scotland
and a devolved settlement that may have been overlooked in matters
that have come forward to the House in a rather hurried and unsatisfactory
way and have had to be resolved.
Lord Davidson of Glen Clova: Certainly
it is an important part of the work of my Office to look at UK
legislation for the ramifications for the settlement, if there
is influence on Scotland, and that is a classic reason why my
Office would look at the issue. Where things are hurried, they
are hurried, but my staff are used to working under time pressures
and they do that very successfully.
Q61 David Mundell: So if a Bill came
forward from another UK department, if there was a Scottish dimension
that had not been covered by that legislation, you would proactively
contact that department, or would you tell the Secretary of State
for Scotland? How would that work?
Lord Davidson of Glen Clova: That
is perhaps slightly more complicated than what I originally took
from the question. Where the Scottish component is identified,
it is quite clear, but if there is a Bill which is a UK Bill,
by definition it covers Scotland, so my staff, through their training,
background and experience, will look at a UK Bill and say, "How
does this impact on Scottish legislation?" That is another
part of their work.
Q62 David Mundell: Yes, but many
of these Bills now are hybrid Bills in the sense that some parts
would cover Scotland, some parts would not, in relation to devolved
matters, but there have been occasions where the parts that did
not impacted on devolved responsibilities in Scotland.
Lord Davidson of Glen Clova: I
can see that there could be tensions should that arise but that
is the type of tension that my Office seeks to avoid and, of course,
the Scottish Executive lawyers take the same approach. That is
what they are for as well.
Q63 David Mundell: They are going
through UK legislation as well?
Lord Davidson of Glen Clova: They
should be. I cannot hand on heart say that is what they do all
the time but certainly when I was Solicitor General in Scotland
it was important to look at what was coming out of the UK Parliament.
I cannot imagine why it would have changed.
Q64 David Mundell: What would be
the channel for that? Even if it was a non-political point, say
somebody in the Scottish Executive legal team identified that
this provision was not competent; do they then go to the First
Minister and say "This is a problem and you need to speak
to London" or do they go to their counterpart in a UK department
or your Department? How would all that work?
Lord Davidson of Glen Clova: It
would be either the UK Department or my Department. I think it
is unlikely that they would escalate it immediately to a political
Minister. It would be dealt with. Particularly if it is the type
of problem that you suggest, one that happens just in the general
scheme of things, at that stage officials would communicate with
one another to try and resolve any problem or any lacuna that
had emerged.
Q65 Mr Wallace: On the last question,
that of course depends on the civil servants effectively being
unionist perhaps, or having an agreement to work together. If
plans for a separate civil service were to go ahead, they are
not bound to have those discussions at all with other civil servants
in other countries, if that was their attitude.
Lord Davidson of Glen Clova: They
are British civil servants; they are members of the British Civil
Service and their responsibilities are not party political so,
unless there were a separate Scotland and a separate civil service,
I cannot see the problem emerging. If you are talking about individuals,
I cannot really comment on that at all.
Q66 Mr Wallace: Do you think that
is one of the reasons why it is important under the current devolution
settlement to keep a UK Civil Service?
Lord Davidson of Glen Clova: Absolutely,
yes.
Q67 Mr Wallace: Not to do so could
threaten that type of initial pragmatic contact.
Lord Davidson of Glen Clova: If
one wants to have things run smoothly, the centuries of strength
invested in the British Civil Service stand us all in good stead.
Q68 Mr Wallace: I have a follow-on
question to that. I, for my sins, was on the UK Bill for the abolition
of Ofwat and Postwatch, which was an exciting Bill if ever there
was one. What was interesting reading through it was that the
department that drafted that Bill did not really have an understanding
of devolution, and when it got into consultation with the Welsh
authorities, it was very clear through the Bill that they did
not understand the difference between Welsh Ministers and Ministers
of the Crown. That was corrected by the Government when it was
pointed out. While I am sure you have to in your Office and the
Welsh do in theirs—I know it is a different arrangement—view
a whole range of UK Bills, lots of Bills coming through, and it
is a rather pernickety point but when it plays out it might not
be. The interesting thing that strikes me about Whitehall is that
the expertise in devolution seems to belong in those departments
that led on devolution. In other words, the Scotland Office or
the Wales Office, purely because it is their bread and butter,
they drafted the Scotland Act, they drafted the Government of
Wales Bill. Ironically, the expertise resides in those departments
and they are constantly playing catch-up or trying to remind Whitehall,
British departments perhaps, who have really no knowledge necessarily
of the settlement, of what their duties are. Do you think that
is an issue and that Whitehall needs to spread the devolution
knowledge or expertise further, rather than just taking it for
granted where it belongs in one place?
Lord Davidson of Glen Clova: That
is a real sociological observation, if I can put it that way,
with respect. What one has is a number of departments well beyond
the Scotland and Wales Offices. One has departments which actually
have quite a deep understanding of devolution. Defra certainly
in my experience is very much involved in this. Recognising to
a degree that one wants to expand the understanding of devolution,
an initiative started in my Office was to set up a UK HMG territorial
lawyers group, this meets, bringing people in from different parts
of government to expand the understanding of devolution, to pass
on the various problems that have arisen and the types of solutions
that have been developed to deal with those problems. So there
is a mechanism in a sense to disseminate understanding of devolution
throughout Whitehall. Is it perfect? I doubt if it is going to
be perfect but it is certainly a very considerable addition to
what we are doing in relation to devolution.
Q69 Mr Devine: Alex Salmond spoke
in 2005 about one of your predecessors advising government on
terrorism legislation and he said, "All the Minister could
say was that the Advocate General could give advice on such matters,
but we already knew that. What we need to know is whether she
did give advice. Was she asked for her view in relation to Scots
law? Did she seek to give her view?" How do you respond to
the criticism that Scotland does not have a strong enough legal
voice in Whitehall?
Lord Davidson of Glen Clova: There
are two points there. One is whether law officers should disclose
at any stage their advice—and I have tried to deal with
that point before—but the notion that Scotland does not
have a strong voice in Whitehall I would really take issue with.
Every day the Scots lawyers are contacting their English equivalents
or sometimes the Welsh and Northern Irish equivalents and discussing
various questions involving devolution or even broader UK legislation.
So Scotland certainly punches above its weight in the UK Government.
Q70 Mr Devine: Can you give us an
example?
Lord Davidson of Glen Clova: Obviously
that runs into the problem of me having or having not given advice.
Q71 Mr Devine: You are playing like
Kenny Dalglish: it is "Maybe aye, maybe no."
Lord Davidson of Glen Clova: Kenny
Dalglish is an admirable footballer.
Q72 Mr Devine: I think you are doing
an admirable job here.
Lord Davidson of Glen Clova: Thank
you very much for the comparison but I am not trying to dodge.
I was thinking maybe Jinky Johnson might be more apt than your
analogy.
Q73 Mr Devine: He was one of my heroes
as well.
Lord Davidson of Glen Clova: I
am not trying to do that. I am trying to maintain the line that
I am required to maintain, which is not to disclose whether I
am asked for advice or whether I have given advice. I am not trying
to be unhelpful.
Q74 Mr Devine: Do you think that
is a sustainable position?
Lord Davidson of Glen Clova: It
has worked. There certainly are developments in recognising, for
example, where there is military engagement involved, that the
content, in the sense of the gist of legal advice, should be put
in front of Parliament because, if one is dealing with a position
where men and women in the armed services need to know that what
they are doing is lawful, then it is important that Parliament
knows that the matter is lawful. That is still set back from the
idea of disclosing full advice, and one can, I imagine, recognise
that there would be other exceptional circumstances where the
advice might be disclosed but certainly the position thus far,
for good reason, I would say, has remained not to reveal advice.
The reason is simply this. If you do not mind, I will just go
through it. Any lawyer dealing with a client is governed by legal
professional privilege. The point of that is not just so that
lawyers can chat to their clients amiably; it is so that the clients
will be candid with them so the lawyer knows exactly what is going
on. When that is the position, the lawyer is in the best position
to work on behalf of a client. If that is lost to government,
you run the risk that government would say, "Well, if we
ask for advice, we had probably better not ask for advice because
it is all going to be put on some website." That would chill
government from asking for advice. Government is meant at all
stages to operate lawfully. Government in any democracy works
under the rule of law, so you do not want to discourage government
from seeking legal advice.
Q75 Mr Devine: I am an elected representative.
You have been here about an hour. I do not know if you have given
advice or you have not given advice and, as I say, it is a "Maybe
it's aye, maybe it's no" that you have.
Lord Davidson of Glen Clova: I
have given advice on many matters.
Q76 Mr Devine: Yes, but I do not
know what you have given advice on. I accept the point about law
but, as Jim McGovern asked you earlier on, if you have given advice
on introducing a local income tax, if you have given advice on
the legislation relating to the referendum on independence, should
I not know that? What is the problem? It is probably not just
me. What is the problem of you being asked, "Have you given
advice on this?" "Yes, I have given advice on it"
or "No, I have not" and "This is the advice"?
What is the problem?
Lord Davidson of Glen Clova: I
do understand the point, and you have to explain to your constituents
why you are paying this person about £94,000 to provide legal
advice which you do not know. I am afraid it is the way in which
the government has deemed sensible to operate, that one does not
have legal advice exposed. I mentioned the discouragement and
the need for candour but there is another factor. You can imagine
this immediately: that if legal advice on a matter of importance
were exposed to public gaze, you know that another lawyer would
come along and say "That is wrong." You can immediately
see that wherever there was an issue of contest, matters would
suddenly turn into a legal debate.
Q77 Mr Devine: What is the problem?
If I am paying you, as a taxpayer, £94,000 a year and you
have given legal advice that is wrong and is challenged, and it
is in the public domain, where is the problem?
Lord Davidson of Glen Clova: Do
you want to fetter government? That is the question. I do not
mean that in an unpleasant way. I am simply saying that this is
how you get decisions made. You seek what you hope is the best
legal advice, you take that advice, then you act. If you have
to get into a position where I provide advice, the Government
acts on that advice or wants to act on that advice on something
of importance, but somebody else comes along and says, "No,
no, you are wrong," and somebody else comes along and says,
"No, you are wrong for another reason," we then go off
to the courts. Once you get into the court system, you go in front
of one judge. One judge might say yes. You then go to the Appeal
Court and they may say no. Then you go to the House of Lords and
they say, "Well, maybe. Maybe you should go back to the beginning
and start again." If you really want to run government that
way, you are not going to be running any kind of sensible government.
Does that perhaps give you some view as to why I share the Government's
view on this? It is the reason why this Committee in its terms
of reference is confined to looking at administration and expense
rather than going into the advice on particular issues, fascinating
though that advice may be.
Q78 Mr Devine: I find it fascinating.
In any year, how many pieces of advice would you give?
Lord Davidson of Glen Clova: A
lot is all I can say. I do not have a figure for it.
Q79 Mr Devine: You cannot tell us
on what subject?
Lord Davidson of Glen Clova: The
business of government.
| 
