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Lord Sewel: I believe the answer to that is no.

10.45 p.m.

On Question, Whether Clause 81 shall stand part of the Bill?

The Earl of Mar and Kellie: I wish temporarily to oppose the Question that Clause 81 stand part of the Bill. The clause deals with Scottish representation at Westminster--but only with constituency representation in the other place. That is quite inadequate. It is important that there also be Scottish representation in this House. Bills with Scottish content will continue to be scrutinised in this House. There is a need for a guaranteed number of active or working Peers who are domiciled in Scotland.

I stress that, of the 27 working Peers announced in the summer who are now being introduced into your Lordships' House, not a single one is domiciled in Scotland, Wales or Northern Ireland. That does not bode well for the future. The unspoken charge has to be one of packing the House with English working Peers. I have examined the list of the 104 Peers who have been created since May 1997 and I can identify 11 who are domiciled in Scotland, but not all of those 104 are working Peers. The figures show that 78 are notionally working Peers, two are Lords of Appeal, seven are Peers as a result of the Birthday Honours, 10 as a result of the Resignation Honours and four as a result of the New Year Honours.

I hope to hear a satisfactory explanation of why there is no mention of Scottish representation in this House in this Bill. The credibility of the devolution settlement depends on there being a guaranteed number of working Peers who are domiciled in Scotland and who will scrutinise the Scottish content of UK legislation. Such an inclusion would be entirely within the spirit of the Treaty and the Act of Union.

Lord Sewel: I do not think that my briefing will help in this regard. I am sure that there will be a continuing number of working Peers domiciled in Scotland who will be active in your Lordships' House, but it would be most inappropriate in this Bill to make any reference to any requirement for a specific number of working Peers to come from one particular component of the UK. The great virtue of this House is that it works--some would say "reasonably effectively"; others would say "not quite as effectively as would a reformed House"--and that it works without any rules governing its geographical composition. I think that we should leave it there.

Clause 81 agreed to.

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Clause 82 [The Advocate General for Scotland]:

Lord Mackay of Drumadoon moved Amendment No. 290C:

Page 39, line 23, at end insert--
("(1A) The Advocate General for Scotland shall be qualified as either--
(a) an advocate, or
(b) a solicitor under the Solicitors (Scotland) Act 1980.").

The noble and learned Lord said: This is the first of two amendments dealing with the position of the Advocate General for Scotland who is referred to in Clause 82. The amendment raises the issue of the legal qualifications that should be held by the person who becomes a member of the United Kingdom Government and holds the new post of Advocate General for Scotland. Although in a number of instances the Bill refers to certain rights that the Advocate General will have--in particular in Clauses 31 and 32, which deal with the pre-legislative scrutiny of Bills by the Judicial Committee of the Privy Council, and in the provisions of Schedule 6 dealing with the resolution of devolution issues--nowhere in the Bill is there a full definition or description of the role which the Advocate General will play. Undoubtedly, the first and subsequent holders of that new office will have to establish themselves in Whitehall and have an office to support them in their work.

While listening to the debate earlier in relation to Amendment No. 289 moved by my noble friend Lord Rowallan and the contributions made by the noble Lord, Lord Monson, and others, it struck me that it is reasonable to anticipate that in the months and years ahead it will be difficult for Scottish MPs in Westminster to play quite as active a role in the affairs of the other place and to play as active a role as members of the Government as they have done up until the present time. Indeed, politicians of all parties are questioning whether there should be a reduction in their number, whether it is right that they should hold ministerial positions in departments such as the Home Office and whether they should participate in debates in another place which are restricted to English-only affairs.

It is against that background that the new post of Advocate General will require to be established. It will remain to be seen whether the one individual who will hold that post will be able to achieve as much influence in the affairs of Whitehall as the Lord Advocate and the Solicitor-General have done in the past and as they currently do with the present Government. They advise the Government on a wide range of legal issues which have UK implications, they make an input into policy formation where a legal input is required and they play a role in the legislative business of one or other--or, indeed, both--Houses of Parliament.

The amendment seeks to make it clear that the Advocate General must be either an advocate, a member of the Faculty of Advocates, or a solicitor under the Solicitors (Scotland) Act 1980. The reason why reference is made to Section 8 of the 1980 Act is to make it clear that the category of solicitor being referred to is one who is qualified to practise as a solicitor in

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Scotland and to be admitted to the roll of such solicitors, kept by the Law Society in accordance with its statutory duties.

Some Members of the Committee may recall that a previous amendment--namely, Amendment No. 255Q--raised a similar issue in relation to the qualifications of the Lord Advocate and the Solicitor-General, in respect of whose appointments certain provision is made in the Bill. When I moved that amendment, which sought to make it possible for a solicitor to serve as a Scottish Law Officer, I was met with opposition from the Government--founding on a memorandum written by the Lord President of the Court of Session in 1924 which had been submitted to the Prime Minister of the day after the new Labour Government under Ramsay MacDonald had mooted the idea of appointing a well-known Glasgow solicitor who was a Member of Parliament, a man who certainly subsequently became, if he was not already in 1924, a highly respected and much-loved Glasgow solicitor, Rosslyn Mitchell, as the Lord Advocate. In the event, they did not do so and it is of some amusement to reflect that they ended up appointing a Mr. MacMillan, as he then was, whose political affiliations were that he had once been selected as a unionist candidate. I have to say that he did not last very long in the post; indeed, a mere nine months.

As I indicated previously, this whole issue of the qualifications of the Lord Advocate and the Solicitor-General will need to be debated again on Report. However, in the light of what has changed in Scotland as regards the role which solicitors play in the legal work, not only with the extended rights of audience that they now have but also the very high-powered and detailed advisory work that they carry out in a huge range of subjects, we on this side of the Committee firmly believe that it would be quite wrong when looking to the future to restrict the new role of Advocate General only to members of faculty.

Clearly it will be competent for the Advocate General to initiate certain legal proceedings. It will be competent for him to be convened as a party to other legal proceedings. If he is a member of Faculty, he can, if he so chooses, appear on his own behalf or he can, as other Law Officers have done in the past, instruct counsel to appear on his behalf. Indeed in the past, particularly in civil matters, it has not been uncommon when the British Government are challenged in court, and a Minister is judicially reviewed, for the Law Officers not to appear but to instruct counsel independently of the Government altogether.

It seems to me that in choosing an Advocate General the United Kingdom Government should have free range to look for a lawyer, whether he be an advocate or a solicitor. It is for that reason that this amendment is proposed. The amendment has the full support of the Law Society, which drafted this amendment and Amendment No. 255Q. Last week I received a letter from the President of the Law Society indicating support

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for the view that this provision should be stated on the face of the Bill. The letter states:

    "The society is of the view that either an advocate or a solicitor should be entitled to be appointed as Advocate General for Scotland. The important issue is that the person so qualified should be the right person for the job, irrespective of to which branch of the legal profession in Scotland he or she belongs".
I beg to move.

Lord Hope of Craighead: I wish to say a few words in support of the principle of the amendment. As the noble and learned Lord, Lord Mackay of Drumadoon, mentioned in his introduction, the Advocate General appears in one or two provisions in this Bill but remarkably little is said about him or her as to qualifications. From the point of view of the court-- I think both of the Privy Council and, with respect, of the Court of Session--the Advocate General will be a person of some importance. One of the things that he can do, as indeed can the Lord Advocate, under this Bill is refer a question about the competence of a measure of the Scottish parliament to the Privy Council for its decision. It may well be that if the Lord Advocate were to refer such a question to the Privy Council, the Privy Council would wish to seek the views of the Advocate General too in order that it may be properly informed about the issue.

In Schedule 6 we see that the Advocate General is included in provisions about the institution of proceedings in the courts and that a court or tribunal before which a devolution issue is raised must intimate the fact that proceedings have been raised on such an issue both to the Advocate General and to the Lord Advocate. Therefore from the point of view of these proceedings it is of great importance that we should know what the proposals are about the qualifications that this member of the government is to have.

From my point of view the most important thing is that it should be clearly understood that this Minister of the Crown should be someone who has a proper qualification to advise the Government and indeed advise the court on matters of Scots law. In the past, of course, one has turned to members of the Faculty of Advocates for that qualification. However, the proposal which is put forward now is certainly not without precedent as regards qualifications for appointment to the Bench. I would not wish to go into the detail but it may be appropriate to include a reference to solicitors as potential candidates for appointment. But from my point of view the important thing is the requirement of a Scottish legal qualification to ensure that this Minister can perform the functions that are required of him by the Bill and those which are implied by his position, which are those of advising the Government on matters relating to Scots law.

11 p.m.

Lord Fraser of Carmyllie: I welcome the probe that my noble and learned friend Lord Mackay has introduced with this amendment and the comments made by the noble and learned Lord, Lord Hope.

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Subsection (1) of Clause 82 seems to start well but finishes badly. As we look to the schedule and to the Ministerial and other Salaries Act 1975 we find that the Advocate General for Scotland is to fall in provision after the Solicitor-General for Scotland. That would seem to accord him a certain status. If he is to have that status in government one would expect him, albeit a new constitutional creature, to have the status of a law officer. I regard it as wholly desirable that the United Kingdom Government should be advised on matters of Scots law by someone who has both qualification and experience in the law of that part of the United Kingdom. To that point I am reassured.

However, in subsection (3) I discover that,

    "If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine".
Does that mean that some junior Minister at the Home Office who maybe went to a Scottish university and once had a brush with the Procurator Fiscal is to assume the role of offering advice to the United Kingdom Government on these important matters? It is a real issue. There is no necessary restriction, as I understand it, on how long a Prime Minister might consider leaving the office of Advocate General vacant. It might be for a protracted period. We need to understand what this new constitutional creature is to be. What is to be his status in the United Kingdom Government and what is to happen if he is unable to perform his duties? It is extraordinary so far as subsection (3) is concerned that he should seem to be put in a position that is no different to that of any junior Minister.

As I am sure the noble and learned Lord the Lord Advocate recognises from the position that he presently holds, the advice that a Law Officer gives to government occupies a separate status within our constitution. During the period of the Thatcher administration there was at least one Secretary of State who I guess to this day regrets revealing the advice he received from a Law Officer.

I am interested to know, if the Advocate General when his office is vacant is to have his functions exercised by some other potentially very junior Minister, whether what he or she has to say in such circumstances enjoys the sort of status that the opinion or advice of a Law Officer enjoys; or is it to be in exactly the same category as any other views expressed by Ministers in government?

It is important that we understand what is to be the position of the Advocate General. Is he truly a law officer? Is he in some way a hybrid character whose task can be fulfilled by someone with little or no legal qualification? If that is the case, I consider it to be thoroughly undesirable. If the distinctive status and importance of Scots law are to be maintained within the United Kingdom Parliament, we wish to see him, and rightly so, as someone who is both qualified and experienced in the law of Scotland.

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