Joint Committee on Human Rights Appendices to the Minutes of Evidence


Memorandum by the Scotland Office

  1.  The Committee has asked for a short memorandum on the effects which the Human Rights Act has had on the work of the Department.

  2.  The Scotland Office consists of the Offices of the Secretary of State for Scotland and of the Advocate General for Scotland.

  3.  The role of the Secretary of State is to represent Scottish interests within the UK Government in matters that are reserved to the UK Parliament under the terms of the Scotland Act 1998, to promote the devolution settlement by encouraging co-operation between Edinburgh and London or otherwise to intervene as required by the Scotland Act, to pay grant to the Scottish consolidated fund and manage other financial transactions, and to exercise certain residual functions in reserved matters (for example the conduct and funding of elections and the making of private legislation in the UK Parliament). The Secretary of State does not have any service delivery functions.

  4.  The Advocate General for Scotland is responsible for giving advice as Law Officer to the UK Government on questions of Scots law. She also regularly advises along with the other UK Law Officers about matters affecting the UK in relation to European Law and the European Convention on Human Rights. She has certain specific functions under the Scotland Act 1998 including power to refer questions of competence of Bills passed by the Scottish Parliament to the Judicial Committee of the Privy Council for determination and powers to raise or participate in court proceedings regarding devolution issues. This often involves issues in relation to the European Convention on Human Rights. The Office of the Solicitor to the Advocate General provides general legal services and advice in relation to Scotland to United Kingdom Government Departments.

  5.  In carrying out their responsibilities the present Secretary of State and her predecessor have taken every opportunity, in co-operation with other United Kingdom Departments and with the Scottish Executive, to emphasise the importance of building a Human Rights culture and the need for all public authorities to pay proper attention to the rights of people who will be affected by their decisions. In the relatively limited areas for which they have policy responsibility they have ensured that full account is taken of the human rights aspects. The Secretary of State is at present, for example, putting in place arrangements to ensure that Scottish private legislation which is brought before Parliament in the form of a provisional order confirmation bill presented by the Secretary of State is properly scrutinised for its human rights implications at an early stage.

  6.  So far as the Advocate General is concerned, apart from her role as a Law Officer in advising on legal issues relating to human rights which may be referred to her, her statutory responsibilities under the Scotland Act have meant that human rights issues form a very substantial part of the day-to-day work of her office. As the Committee will be aware, it is outwith the competence of the Scottish Parliament to legislate, and the competence of the Scottish Executive to act, in a way which is incompatible with the Convention rights as defined in the Human Rights Act 1998. In consequence, Scotland has been in the forefront of the development of a human rights culture in the United Kingdom. While the Ministers of the Scottish Executive are responsible at first instance for ensuring that they and the Parliament act compatibly with human rights, the Advocate General, through her statutory role in scrutinising the legislation of the Scottish Parliament and her right to intervene in devolution issues which arise in the Scottish Courts, has played a major part in the development of a human rights culture.

  7.  In practice, almost all the devolution issues which have been raised in the Scottish Courts have been issues as to compatibility with the Convention rights, mostly in relation to the actings of the Lord Advocate as prosecutor in Scottish criminal cases. The Advocate General regularly intervenes in those cases which are thought to raise issues of sufficient importance and has been a party to a number of appeals to the Judicial Committee of the Privy Council which have resulted in important clarifications of the implications for United Kingdom law and practice of the relevant Convention rights.

March 2001

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