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Lord Thomas of Gresford: It is with some trepidation that I venture into this field in the presence of the noble and learned Lord the Lord Advocate and former holders of that office. It is not entirely clear why the Lord Advocate and Solicitor-General should be Scottish ministers within the Scottish executive who do not necessarily exercise law functions. Under Clause 26 of the Bill it is not necessary for the Lord Advocate or the Solicitor-General for Scotland to be a member of the Scottish parliament. In all probability the law officers will not be elected members of the parliament. They will no doubt be appointed under Section 45(1), and the traditional role, certainly of the Attorneys General in this jurisdiction and in Commonwealth jurisdictions, is to give independent advice to government on legal issues which that government have to consider. But making them members of the Scottish executive suggests to me that the doctrine of Cabinet collective responsibility has to be dented. The Scottish executive cannot have in its number the Lord Advocate and Solicitor-General for Scotland, who may be charged with other duties beyond their normal functions, and yet expect them to be bound by Cabinet collective responsibility or anything of that nature. Yet, if it is suggested that they should be, they are the people who, under Clause 32, for example, may refer questions as to whether a Bill or any provision of a Bill is within the legislative competence of the parliament.

They have to stand away from the decision of the Scottish executive if they consider that the Scottish executive is acting outside its powers. I can see the practicality of having Scottish law officers within the executive from the beginning to guide the new body, as the noble and learned Lord explained. I can see its practical utility; nevertheless, it seems to me that there cannot be collective responsibility for the decisions of the Scottish executive if they are part and parcel of that Scottish executive. I should be grateful if the noble and learned Lord can tell me whether I am entirely wrong in that assumption.

Lord Hardie: The noble Lord is wrong. The position, as I sought to explain, is that at present the Lord Advocate has certain executive functions which are separate from the Law Officer functions and separate from his functions as a prosecutor. In exercising those functions, such as the responsibility for civil law, civil evidence and procedure, the Law Officers, in exercising those functions, are exercising an executive function as part of the executive. To that extent they would have collective responsibility in that regard.

On the other hand, when they act as Law Officers they do separate themselves from the executive and they give advice independently; similarly, when they act as prosecutors. The law is quite different from that in England in relation to the prosecution function. That is quite separate from the executive and there is no executive interference in the prosecutorial role and that would not be accepted or tolerated by any Lord Advocate, nor would the executive seek to interfere in that.

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At present, the existing Law Officers, both Scottish and English, are part of the UK Government, so why should the position be different for the Scottish parliament? Why should the Scottish Law Officers not be part of the Scottish government and part of the Scottish executive, able to perform executive functions which are not incompatible with their functions as Law Officers or their functions as prosecutors, just as they perform certain executive functions now which are not incompatible with these functions?

As I said, it would be inconceivable that the first minister would allocate any of the responsibility for criminal procedure or anything of that kind to the Lord Advocate. That might well conflict with his role as a prosecutor. It might be seen to be influencing the prosecution by undertaking that. That is allocated to a different Minister, not the Law Officers in Scotland. I hope that that will have reassured the noble and learned Lord.

10.30 p.m.

Lord Mackay of Drumadoon: Before the noble and learned Lord sits down--I should know the answer to this question--is there to be any form of parliamentary scrutiny of the first minister's allocation of duties among the members of the Scottish executive, in particular as to which functions he allocates to the Lord Advocate?

Lord Hardie: I, too, should know the answer. My recollection is that there is not. The parliament will be involved in the approval of the appointment of Ministers, but the allocation of duties as between Ministers would be a matter for the first minister.

Lord Mackay of Drumadoon: That accords with my understanding of the Bill, unless the function came from a Minister of the Crown through a Section 59 order. That might be an exception to it.

This debate has been useful. I do not believe that there is anything between the noble and learned Lord the Lord Advocate and myself about certain important parts of the future role of the Scottish Law Officers. First, if the Lord Advocate is to be devolved then his independent role as public prosecutor has to be protected. I fully acknowledge that in provisions in the Bill, as he says, his independence is enshrined.

Beyond that, I still have some uneasiness that the Lord Advocate and the Solicitor-General will be members of the Scottish executive and not part of a separate government department, as the UK Law Officers are. It is true, as the noble and learned Lord said, that the Lord Advocate has certain executive functions. I have a copy of the draft order and the briefing guide with it to which he referred. A long list of Bills sets out where his powers are to be found. Most of them relate to the making of appointments and the laying down of certain procedures to be followed by different tribunals. But, as the noble and learned Lord said, he has responsibility for civil procedure. He also has considerable responsibilities under the Debtors (Scotland) Act 1987. It is appropriate that fully paid

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Law Officers should have responsibility there. He also has responsibilities under the Nurses, Midwives and Health Visitors Act 1997.

I am not against the Scottish Law Officers having executive functions of a non-political nature. My concern is as regards the provisions of Clause 48 which may make it possible, however unlikely, for more political responsibilities to be handed over in a situation where, as the noble and learned Lord said, it would be for the Law Officers to give advice which he is optimistic would be followed in accordance with the conventions applying at Westminster.

This is not an appropriate matter to press to a Division at this stage of the evening. However, I hope that over the Recess the Government will reflect on whether it may be possible to work out some means of establishing greater independence not just in the prosecutorial functions but also the other functions of the Lord Advocate. As the noble Lord, Lord Thomas, indicated, it is important that everyone is clear about the role of the Law Officers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No.255B:

Page 19, line 5, at end insert--
("( ) The Solicitor General for Scotland shall be the law officer to the Scottish Executive").

The noble and learned Lord said: This touches on another matter which I consider to be of importance, although I fully accept at the outset that it was dealt with in the White Paper and formed part of the Government's proposals when the White Paper was placed before the people of Scotland prior to the referendum.

The purpose of the amendments is to retain the Lord Advocate as a member of the United Kingdom government and to provide that the Solicitor-General for Scotland should be the Law Officer to the Scottish executive. Those amendments are Amendments Nos. 255B, 255P, 255Q, 255R and 255S. Amendment No. 257A is slightly different and seeks to provide that the Lord Advocate should maintain a separate office, part of the theme I argued for in the previous group of amendments.

There are a number of reasons for the view I hold, which I shall endeavour to place briefly before noble Lords. The principal function of the Lord Advocate is to act as the independent public prosecutor in Scotland. He is in charge of the investigation of sudden deaths and in complete control of the prosecution system by which those accused of criminal conduct are brought before the courts. He has certain statutory powers to direct the police in their investigations, and his staff, the procurators fiscal and advocate deputes from time to time give instructions in individual cases.

In exercising that function the Lord Advocate and those who work under him act in the public interest. As I have observed, that public interest is not limited to the interests of the people who live in Scotland, nor is it limited to devolved matters.

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Assessing the public interest requires taking account of much wider considerations, not least the national issues which arise relating to the misuse of dangerous drugs, firearms, health and safety at work considerations, et cetera. As we were scrutinising Schedule 5 to the Bill it would have been abundantly obvious that in those fields the legislative power is not being devolved because they are all reserved matters. Many of the offences currently prosecuted in Scotland in the name of the Lord Advocate are for breaches of legislation made in this Parliament, and that will remain the position when the Scottish parliament comes into existence.

In considering this issue I thought it would be helpful to look back at what happened in 1978 when the Scotland Bill was promoted by the Labour government of the day. The decision reached by the constitutional team, which formed part of the government and which included John Smith, who was a very successful Queen's Counsel in Scotland as well as being a highly respected politician, the then Solicitor-General for Scotland, the noble and learned Lord, Lord McCluskey, and the Lord Chancellor of the day who took part in certain of the debates in the Bill, was that the Lord Advocate's position should not be devolved.

It is interesting to see what was said in the White Paper at that time. At paragraph 144 the separate character of Scottish law and the Scottish legal system was described, being especially recognised when the Union between Scotland and England came into being. It was said that in this distinctively Scottish field the government believed that extensive evolution was particularly appropriate. There were paragraphs dealing with Scottish private law and civil law and the role of the Law Commission. In paragraph 147 the White Paper dealt with the question of the criminal law. The Scottish administration and the devolved executive would also be given responsibility for the general criminal law including the right to create new offences, to redefine or abolish existing offences, to determine penalties and to regulate the treatment of offenders. However, it went on to point out certain exceptions, such as the misuse of drugs, explosives, firearms and so forth.

The important paragraph states:

    "The enforcement of the criminal law through the police and the prosecution system, which in Scotland is not in any way under the control of the police, is part of the responsibility of the Government for the maintenance of law and order and the security of the state and will extend to offences within both devolved and other fields. It would not be right that responsibility for law enforcement should rest with members of an administration not directly answerable to Parliament".

I have to say that that summarises my concern most succinctly. It would not be right that responsibility for law enforcement should rest with members of an administration not directly answerable to Parliament.

Once devolution comes along and if the Lord Advocate becomes part of the Scottish executive, he will no longer be answerable to this Parliament for prosecutions which may be of concern to Members of Parliament for a variety of reasons; whether it be because the prosecution involves a major national interest or whether it be because it involves the prosecution of someone who resides in England but is

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prosecuted in Scotland and whose MP is in England and who has no representative in Scotland. For whatever reason, from time to time cases will arise in respect of which Members of your Lordships' House and of another place will wish to question why a prosecution took place. They will no longer have that right. I believe, as the authors of the 1978 White Paper believed, that that would not be correct.

Although it is a lesser point, I also believe that it is important that the Lord Advocate, because he has to prosecute for contraventions of legislation passed by this Parliament, should have direct access to this Parliament and be a Member of the Government who have the responsibility of putting legislation through this Parliament. That right will be lost, even if it is possible, as may well be the case, that future Lords Advocate, if they were to be devolved, could be appointed Members of your Lordships' House.

Finally, and again it is a lesser consideration, it would no longer be possible for the Lord Advocate to represent the United Kingdom whether in the courts of Luxembourg or Strasbourg or at any other international and Commonwealth conference which over the years Lords Advocate have attended.

I fully accept that there will be an Advocate General who will do so, according to the Government's proposals. I fully accept it is possible that he will be able to discharge some of the roles. But he will not be capable of being answerable to this Parliament for the prosecution of crime. I believe that that is a serious flaw in the Government's proposals. I beg to move.

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