HC 842 The role and powers of the Prime Minister

Further written evidence submitted by the Scottish Government

Introduction

This paper responds to the Committee’s request for evidence in connection with its inquiry into the role and powers of the Prime Minister.

The Scottish Government does not offer any direct commentary on the role and powers of the Prime Minister. That is ultimately a matter for the UK Parliament. However, this paper provides the Committee with some factual background on the role and powers of the First Minister of Scotland and the degree to which statute impacts upon those activities.

Functions of the First Minister - Summary

The Scotland Act 1998 makes the principal provision regarding the role and responsibilities of the First Minister. Additional statutory responsibilities are contained in other statutes. Further provision is also made in the Standing Orders of the Scottish Parliament in relation to matters such as the nomination of the First Minister and the appointment of ministers. In addition, First Ministerial activities may be founded on convention (e.g. chairing the Scottish Cabinet).

Accordingly, no single document sets out the entire extent of the First Ministerial role, although the principal elements of the constitutional framework defining the role and functions of the office are contained in the Scotland Act – which represents, in effect, a largely-codified Scottish Constitution. Information annexed to this paper provides further background on roles and powers which are not to be found in the Scotland Act.

The Scotland Act 1998

The key provisions of the 1998 Act as regards the office of the First Minister include:

Section 44: Defines membership of the Scottish Government, with the First Minister as one of the three core members required in order to constitute a government (alongside the Lord Advocate and the Solicitor General).

Section 45: Provides for the appointment of the First Minister by Her Majesty. It makes provision for the First Minister’s term of office, resignation, and for the First Minister’s functions to be undertaken by a designated member of the Scottish Parliament if the office of the First Minister is vacant or if the First Minister is unable to act.

Section 46: Makes provision about the way in which a person is chosen for appointment as First Minister. Unlike the Prime Minister, the First Minister is chosen directly by members of the Parliament (in accordance with the Standing Orders of the Parliament). The Parliament’s nominee is recommended to Her Majesty by the Presiding Officer. There is no role for Her Majesty in inviting the leader of a political party to form a government and, consequently, no possibility that she might be drawn into political controversy in the event of finely-balanced or disputed election result.

Section 52(5)(a): Normally functions are conferred upon the Scottish Ministers and can be exercised by any of them (see section 52(3) of the Act). However, statutory functions can also be conferred upon the First Minister alone (see below) and, if so, they are not exercisable by any other Minister nor is any responsibility for their exercise transferred to any other Minister (see section 52(5)(a)).

Miscellaneous statutory responsibilities of the First Minister

· Appointment, with the approval of Her Majesty, of Scottish Ministers and Junior Scottish Ministers [sections 47 and 49 of the Scotland Act 1998].

· Recommending to Her Majesty that the Lord Advocate or Solicitor General should be appointed or removed, subject to the agreement of the Parliament [section 48 of the Scotland Act 1998]

· Various functions relating to the appointment and removal of judges [section 95 of the Scotland Act 1998].

· Functions relating to the four ancient universities of Scotland (the First Minister is an ex-officio member of the Scottish Universities Committee of the Privy Council) [section 9 of the Universities (Scotland) Act 1889 and the Royal Charter of the Carnegie Trust for the Universities of Scotland 1978].

· Functions relating to reports made by the Interception of Communications Commissioner and Intelligence Services Commissioner [Sections 58 and 60 of the Regulation of Investigatory Powers Act 2000].

· Civil Service management functions in relation to staff of the Scottish Administration [section 1 of the Civil Service (Management Functions) Act 1992, as read with section 51 of the Scotland Act 1998].

· Keeper of the Scottish Seal [Section 45(7) of the Scotland Act]. The First Minister can also direct how Wafer Scottish Seals are to be kept and how they are to be taken [section 38(4) & 38(5)(b) of the Scotland Act].

· Consultee on selections for membership of the UK Supreme Court [Sections 27 & 28 of the Constitutional Reform Act 2005].

· To approve the issuing of certificates confirming that evidence cannot be supplied to the Scottish Public Services Ombudsman as it relates to proceedings of the Scottish Cabinet or any committee of the Scottish Cabinet [1] . [Section 13(8) of the Scottish Public Services Ombudsman Act 2002].

· Issuing of certain certificates under the devolved Freedom of Information legislation [Section 52 of the Freedom of Information (Scotland) Act 2002]

· In respect of the exercise of functions during vacancies in the offices of Lord President of the Court of Session and Lord Justice Clerk and the incapacity of the holders of those offices [Senior Judiciary (Vacancies and Incapacity)(Scotland) Act 2006].

· Action in relation to recommendations made by the Standards Commission or Chief Investigating Officer in respect of Crown Appointments [Section 23 of the Ethical Standards in Public Life etc (Scotland) Act 2000].

The First Minister also has certain statutory responsibilities in respect of his or her membership of the Privy Council, as explained in a PQ answered by the Prime Minister on 30 June 1999. The text of that PQ and an accompanying paper referred to in the answer is offered in the Annex to this paper.

Responsibilities specific to First Minister by convention

· Allocation of Ministerial functions and titles

· Chairing Cabinet

· Appointment of Special Advisers and Parliamentary Liaison Officers

· Scottish Ministerial Code (including dealing with complaints against Ministers)

· Minister in attendance on Her Majesty

· Honours recommendations to Her Majesty

· Signing of Royal Warrants en route to Her Majesty

· Acting as Purse-bearer when Her Majesty is at the General Assembly

· Advising the Prime Minister about candidates for appointment as Lord Lieutenant

· Representing the Scottish Government at important events and engagements

· Approving the movement of restricted patients

· Taking the salute at the Edinburgh Military Tattoo

· Approve Ministerial Hospitality Programme and Expenditure

Responsibilities as Head of the Scottish Government

The First Minister has responsibility as head of the Scottish Government, including responsibility for development, implementation and presentation of Government policy and for promoting and representing Scotland at home and abroad.

Many responsibilities relate to the internal operation of Government (leading the Ministerial team, chairing the Scottish Cabinet etc.). The First Minister is also accountable to Parliament in his or her capacity as the Head of the Scottish Government, including by taking First Minister’s Questions each week in the Parliament and when announcing the Government’s forthcoming legislative programme (normally in September).

Accountability

The Committee has asked specifically about accountability. The First Minister is accountable to the Scottish Parliament in the normal way and is required to tender his or her resignation (along with all ministers) if defeated on a vote of confidence.

As is the case with the UK Prime Minister, the First Minister of Scotland is not directly accountable to the electorate. The system is parliamentary in nature, rather than presidential. However, the founding principles of the Scottish Parliament, developed by the Consultative Steering Group, emphasise that both the executive and the legislature should be accountable to, and share power with, the people. As the head of the Government, the First Minister consequently has an element of convention-based political accountability to the nation, on behalf of the Government, that is not directly paralleled at Westminster.

Scottish Government

February 2011

ANNEX

FIRST MINISTERIAL FUNCTIONS AS PRIVY COUNCILLOR

PRIME MINISTER

 Devolution (Scotland)

30 June 1999

 Mr. Maxton: To ask the Prime Minister if he will make a statement regarding the giving of advice by the First Minister to Her Majesty on the exercise of her functions in connection with the implementation of the Scotland Act 1998. [89358]

 The Prime Minister: In a number of situations advice is by convention, given by a Minister of the Crown to Her Majesty in respect of the exercise of her functions. The majority of Her Majesty's functions in respect of which she receives advice from a Minister of the Crown in this way relate to the making of appointments and the use of the Royal prerogative.

As a consequence of the new constitutional arrangements under the Scotland Act 1998, it is proposed that in some of those situations the First Minister instead of a Minister of the Crown will give advice, by convention, to Her Majesty after 1 July in respect of her functions. No formal order is required to give effect to these transfers, which will be carried out by administrative arrangement. In this context "Her Majesty's functions" refer to her statutory functions and cases where Her Majesty acts under her prerogative or common law powers. It concerns only those functions of Her Majesty which she exercises personally and not those which are exercised on her behalf by a Minister of the Crown. It deals only with circumstances in which a Minister of the Crown provides advice to Her Majesty by convention and it does not deal with circumstances in which a Minister of the Crown exercises a statutory function of advising Her Majesty. Where appropriate, provision has been made in the Scotland Act, or in subordinate legislation under the Scotland Act, to transfer these statutory advice-giving functions from the Minister of the Crown to the First Minister.

 In cases where Her Majesty exercises a function which is exercisable within devolved competence for the purposes of the Scotland Act 1998 and she is, by convention, advised by a Minister of the Crown about the exercise of that function, then after 1 July she will be advised by the First Minister instead of by a Minister of the Crown.

 For example, Her Majesty exercises the Royal prerogative of mercy and appoints regius professors of the ancient Scottish universities in this way. A list of further examples of circumstances in which Her Majesty will in future be advised by the First Minister instead of by the Secretary of State in relation to the exercise of her functions which relate in whole or in part to a devolved matter has been placed in the Library.

 There are some matters in respect of which the Prime Minister gives advice to Her Majesty on the exercise of her functions and on which it would be appropriate for the Prime Minister to consult or to take advice from the First Minister. These matters include recommendations of Scottish candidates for honours and dignities, which are a  reserved matter, and advice on the appointment of Lords Lieutenants in Scotland, the Lord High Commissioner to the General Assembly of the Church of Scotland and members of the Royal Commission on Environmental Pollution and the Forestry Commission. There are also matters where a Minister of the Crown gives advice to Her Majesty and where it also would be appropriate for the First Minister to be consulted by or to give advice to that Minister of the Crown.

 The Scotland Act 1998 confers upon the First Minister various functions of advising Her Majesty either directly or through the Prime Minister. This includes seeking Her Majesty's approval to the appointment of Scottish Ministers and recommending to Her Majesty persons for appointment as Scottish Law Officers. Section 95 of the Act sets out in detail the arrangements for the First Minister to nominate persons for appointment as Lord President of the Court of Session and Lord Justice Clerk to the Prime Minister, who in turn makes recommendations on those appointments to Her Majesty. It also provides for the First Minister to recommend to Her Majesty the appointment of other judges.

 In a number of other situations, Her Majesty is advised in relation to the exercise of her functions by the Privy Council rather than by a Minister of the Crown. The Privy Council deals with various items of Scottish business, both prerogative business and statutory matters, such as the grant of Royal Charters and Privy Council appointments. I have placed a paper [see directly below] in the Libraries of both Houses that briefly describes the circumstances in which the First Minister will, from 1 July, contribute to Privy Council business in the same manner as the Secretary of State for Scotland has done.    

SCOTLAND ACT 1998: SCOTTISH BUSINESS OF THE PRIVY COUNCIL

1. This paper describes how the First Minister will from 1 July 1999 contribute, in the same manner as the Secretary of State for Scotland has done, to the Privy Council's Scottish business which dates to non-reserved matters for the purposes of the Scotland Act 1998.

2. The First Minister will be a Privy Counsellor and the Lord Advocate will continue to be a Privy Counsellor.

3. Advice in relation to Privy Council matter, such as the grant and amendment of Royal Charters, appointments and the making of Orders in Council, is given to Her Majesty by the Privy Council. Advice about a particular matter is offered to Her Majesty by the members of the Privy Council who are in attendance at the meeting of the Privy Council at which the matter is dealt with, rather than by specific members of the Privy Council. However, the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.

4. Where the Secretary of State for Scotland, as the Privy Counsellor with the principal interest, is currently responsible for providing advice or information in relation to the Privy Council's Scottish business then his role will pass to the First Minister from 1 July 1999 in relation to non-reserved matters far the purposes of the Scotland Act 1998 (the 1998 Act). Where the Secretary of State for Scotland 's role in providing advice to Privy Council is a statutory function, then a consequential amendment to the relevant enactment will be required to change the reference to the Secretary of Stale for Scotland to the First Minister. This will be provided for in the 1998 Act itself or in the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 to be made under section 105 of the Scotland Act 1998. In cases where the Secretary of State's role is to provide advice by convention then legislation is not required to transfer this role to the First Minister. The Lord Advocate, as the Scottish Law Officer to the UK Government and a Privy Counsellor, also currently provides information and legal advice in relation to the Privy Council's Scottish business and he will continue to do so in relation to non-reserved matters after he has become a member of the Scottish Executive.

5. One of the main functions of Her Majesty in Council is to make Orders in Council on the advice of the Privy Council. The Privy Council also makes Orders of Council. In respect of Orders in Council and Orders of Council made under powers within devolved competence to make, confirm or approve subordinate legislation, the 'responsible authority' for the drafting of the subordinate legislation will be a member of the Scottish Executive, with the exception of Orders in Council under section 1 of the United Nations Act 1946. This is provided for in the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (SI 1999/1096) made under section 129 of the Scotland Act 1998. Where appropriate, any additional information or advice about such subordinate legislation which has bees drafted by a member of the Scottish Executive will be provided to the Privy Council by the First Minister.

6. The Privy Council also has responsibility for the following matters of Scottish Business, which may be divided into prerogative matters and statutory matters.

7. The prerogative matters primarily relate to Royal Charters. These include the grant and amendment of Royal Charters, and Byelaws and Statutes, for Scottish Chartered Bodies. Scottish Chartered bodies include the Scottish Sports Council, the Scottish Society for Prevention of Cruelty to Children, the Arts Council for Scotland and the four Scottish Chartered universities, (Heriot-Watt, Strathclyde, Dundee and Stirling). They also include Privy Council appointments made under Royal Charters.

8. The role of the Secretary of State for Scotland or another Minister of the Crown in providing advice or information to the Privy Council for the Privy Council then to offer to Her Majesty in relation to Scottish Royal Charter matters will pass to the First Minister where it relates to matters within devolved competence. Where a Chartered body or a body applying for a Charter has functions which relate to both reserved and devolved matters, then the First Minister will provide advice to the Privy Council in relation to the devolved part of the body's functions. After 1 July the appropriate Minister of the Crown will provide advice or information in relation to Scottish Privy Council business relating to reserved matters. Administrative arrangements will be put in place so that the first Minister and Minister of Crown will jointly agree and provide advice to the Privy Council in relation to such 'mixed' bodies.

9. In a few circumstances, the Scottish Ministers will have an interest in a Scottish element of a Chartered body whose functions relate to reserved matters. Where appropriate, administrative arrangements will be put in place to provide for consultation with the Scottish Ministers by the Minister of the Crown before advice is provided by the Minister of the Crown to the Privy Council. For example, the Secretary of State for Culture, Media and Sport will consult the Scottish Ministers about the appointment of the National Governor for Scotland of the British Broadcasting Corporation under the BBC's Royal Charter.

10. The Privy Council's Scottish business in relation to statutory matters includes education matters, the alteration of statutory bank holidays, Privy Council appointments made under statute and the approval of courses leading to state registration for professions supplementary to medicine.

11. The Universities (Scotland) Act 1889 (the 1889 Act) established the Scottish Universities Committee of the Privy Council, whose members include the Secretary of State and the Lord Advocate. The Universities (Scotland) Act 1966 provides that no ordinance of the universities of St Andrews, Glasgow, Aberdeen and Edinburgh (the 'ancient' universities) shall come into effect until it has been approved by Her Majesty in Council, and Her Majesty in Council may refer the ordinance to the Scottish Universities Committee who shall report to Her Majesty thereon. In practice, the secretary of State and the Lord Advocate advise Privy Council on ordinances. The secretary of state's role as a member of the Committee will be transferred to the First Minister on 1 July, by means of a consequential modification of the 1889 Act, and the Lord advocate will continue to be a member of the Committee. The Secretary of State's current role in advising Privy Council on other higher education matters, such as applications for degree awarding powers and for consent to changes of institutional governance orders under the Further and Higher Education (Scotland) Act 1992 will pass to the First Minister, as will his role in relation to applications by Scottish institutions under the Company and Business Names legislation to use the word 'university' as part of their names. The First Minister will also provide advice to the Privy Council in respect of the appointment by Her Majesty of Inspectors of Schools under section 135 of the Education (Scotland) Act 1980 (the 1980 Act). The Committee also approves amendments to certain educational endowments under the 1980 Act.

12. Section 1 of the Banking and Financial Dealings Act 1971 provides for the alteration of statutory bank holidays in Scotland or making a special day a bank holiday in any given year. This is done by means of a Proclamation by her Majesty in Council and the Secretary of State for Scotland’s role in relation to providing advice to the Privy Council on this matter will pass to the First Minister.

13. Under the Professions Supplementary to Medicine Act 1960, the Privy Council makes a determination approving courses and qualifications for state registration purposes in the fields of professions supplementary to medicine. By convention, the Secretary of State for Scotland is one of the 3 Privy Counsellors required by the Act to approve courses run by Scottish institutions. The role of the Secretary of State for Scotland in relation to such courses will pass to the First Minister.

14. Finally, the Secretary of State for Scotland has a role in relation to nominating Privy Council appointments of Scottish representatives to various statutory bodies relating to the health professions such as the General Medical Council, the General Dental Council and the General Optical Council. The First Minister will take over the Secretary of State for Scotland’s role in nominating Privy Council appointments of Scottish representatives to these bodies. Advice and nominations for the other Privy Council appointments to these bodies will come from the Secretary of State for Health. Administrative arrangements will be put in place to provide for mutual consultation between the Scottish Ministers and the Secretary of State for Health before either party puts forward nominations to the Privy Council.

Table of Examples of cases where Her Majesty exercises a function which is exercisable within devolved competence for the purposes of the Scotland Act 1998 and she is, by convention, advised by a Minister of the Crown about the exercise of that function and where after 1 July 1999 She will be advised by the First Minister instead of a Minister of the Crown.

Function

Statutory basis (where relevant)

Appointment of the Lord Lyon and the Lyon Clerk

Lyon King of Arms Act 1867, sections 3 and 5

Appointment of Regius Professor of Plant Science at the University of Edinburgh

Edinburgh University (Transfer of Patronage) Act 1897, section 1

Appointment of 5 of the 32 Board of Trustees of the National Library of Scotland.

By convention advice is also given on which member should be chairman

Paragraph 2 of the Schedule to National Library of Scotland Act 1925, as substituted by the National Heritage (Scotland) Act 1985, section 18(5)

Appointment of HM Inspector of Fire Services

Fire Services Act 1947, section 24

Limitation in respect of age or tenure of office in relation to appointment or nominations made by the Crown

Universities (Scotland) Act 1966, Schedule 2, Part II, paragraph 7

Appointment of HM Inspector of Constabulary

Police (Scotland) Act 1967, section 33(1)

Appointments to Mental Welfare Commission

Mental Health (Scotland) Act 1984, section 2(4)

Appointment of Regius Keeper of the Royal Botanic Garden, Edinburgh

National Heritage (Scotland) Act 1985, Schedule 1, Part II, paragraph 14

Appointment of HM Chief Inspector of Prisons

Prisons (Scotland) Act 1989, section 7

Appointment of Chairman and members of the Scottish Land Court

Scottish Land Court Act 1993, section 1(2)

Appointment of members and chairman to the Scottish Criminal Cases Review Commission.

Removal of person from office as member of Scottish Criminal Cases Review Commission.

Acceptance of resignation of person from office as member of Scottish Criminal Cases Review Commission

Use of Royal Prerogative [1] including the use of Royal Names [2] and Royal Patronage [3] .

Receipt of and response to the submission of Loyal Addresses to Her Majesty from Churches and individuals in Scotland

Issue of Royal messages and congratulations such as those for 100th and succeeding birthdays and 60th and succeeding wedding anniversaries

Response to a Petition submitted to Her Majesty

Royal Prerogative of Mercy

Signature of Diplomas in respect of persons elected to the Royal Scottish Academy

Appointments to the Royal Fine Art Commission for Scotland

Appointment of Commissioners and Chairman to the Royal Commission on the Ancient and Historical Monuments of Scotland

Appointment of Her Majesty's Sculptor in Ordinary in Scotland

Appointment of Her Majesty's Painter and Limner in Scotland

Appointment of Regius Professors to Ancient Universities

Appointment of Astronomer Royal for Scotland

Appointment of Historiographer Royal in Scotland

Appointment of Keeper of Dumbarton Castle


[1] This anomalous statutory reference to the existence of the Scottish Cabinet reflects a comparable provision in section 8(4) of the Parliamentary Commissioner Act 1967.

[1] In respect of the use of Royal Prerogative, where the advice concerns a devolved matter the First Minister will advise Her Majesty.

[2] An organisation may only call itself “Royal” if it has the authority of Her Majesty. Requests to name a street or other place after a member of the Royal Family also require approval by Her Majesty. Where the application is for something that is in Scotland the First Minister will advise Her Majesty.

[3] This refers to patronage of an organisation by a member of the Royal Family. Where the organisation is Scottish based and operates in devolved areas the First Minister will advise Her Majesty.

Prepared 8th July 2011