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Lord Rodger of Earlsferry: I support the remarks of my noble and learned friend Lord Hope of Craighead. The post of Advocate General is a new one. We cannot
fall back on any conventions as to the status of the person who would be appointed. Therefore there is nothing to tell us what this person would be.I have no doubt that the noble and learned Lord the Lord Advocate will tell us that a Scottish lawyer would be appointed. It is, however, a post of particular sensitivity. I suspect that the post will prove to be a bed of nails for the holder. He or she is unlikely to win many friends. It will be a difficult post.
It is therefore imperative, because of the sensitivity of the legal issues and the potential for political and constitutional difficulty in some of the decisions which would fall to be taken, that that person should be a person who holds a Scottish legal qualification and a person of the very highest standing. I can therefore see no disadvantage and every advantage in putting the minimum qualification on to the face of the Bill so that we can be assured that the Advocate General will indeed be a person who has a Scottish legal qualification. I can see no reason why it should not be open for this office to be held by a solicitor of distinction as much as by an advocate of distinction.
It is important that these matters should be set down and understood. If what happened in 1924 shows anything, it is that these crises can emerge of a sudden, out of a clear blue sky, when the whole position is uncertain. It would be unfortunate if the position were left uncertain; it would be much preferable if the matter were simply dealt with on the face of the Bill.
Lord Selkirk of Douglas: It seems that the case advanced by my noble and learned friend Lord Mackay of Drumadoon is unanswerable. It has been strongly supported by the Lord Justice General and President of the Court of Session. It is obviously necessary for the Advocate General to have the necessary expertise for that function, especially in cases of emergency. If I may say so, if the noble and learned Lord the Lord Advocate were in an aircraft hurtling towards the ground, he would very much want to have someone at the controls who was highly qualified and had the necessary expertise in order to ensure a successful outcome. I am sure that that should be the situation with this post in case of emergency in the future.
Lord Hardie: I can assure Members of the Committee and the noble Lord, Lord Selkirk of Douglas, that I certainly would wish to have someone competent at the controls of the aircraft, just as I am sure the Prime Minister would wish someone with appropriate expertise in Scots law to be appointed to the new office of Advocate General.
The amendment would require the Advocate General for Scotland to be legally qualified in Scotland, as either an advocate or a solicitor. I agree entirely with what has been said by Members about the principle that whoever is appointed to this post should have appropriate standing and qualification in Scots law to enable him or her to advise the United Kingdom Government. The only points between us are whether it is necessary to put on the face of the Bill what the qualifications have to be and whether the qualifications set out in the amendment are the appropriate ones.
If one starts from the principle that the person appointed should be someone who has appropriate qualification and expertise in Scots law, it may be that such a person exists who is neither an advocate nor a solicitor. For instance, there may be a professor of law who is not a member of either profession. There may even be a sheriff who is not a member of either profession or a member of the Law Society of Scotland. Having said that, I suspect the answer to the latter point would be that a sheriff would probably have been qualified under the solicitors' legislation or as an advocate, so perhaps that last example was a bad one. Certainly the professor of law would be an example of someone who had the necessary academic experience but may also have had the experience of giving opinions to people on constitutional and other matters. Accordingly, if there is to be any qualification on the face of the Bill, the amendment would be drawn too narrowly and restrictively as far as the choice available to the Prime Minister is concerned.
As noble Lords will be aware, the offices of Lord Advocate and Solicitor-General are held by custom by members of the Scottish Bar. It has not been felt necessary in the past to prescribe the qualifications for those offices. It is not clear why that should be necessary in respect of the new office. Effectively, although the office of Advocate General is new, it will have functions similar to those held by the Lord Advocate. He or she will have to give advice to the United Kingdom Government on Scots law and the Advocate General will be required to represent the UK Government in litigation. There are also particular functions in relation to devolution in Schedule 6. It is clear that the United Kingdom Government would wish only to appoint a Scots lawyer of appropriate standing to fulfil those ministerial duties. However, the Government question whether it is necessary to set out on the face of the Bill what those qualifications should be. I believe that this is a matter that should properly be left to the discretion of the Prime Minister of the day.
I suggest that the question of the possible appointment of a solicitor to this office is not appropriate to this Bill. The advent of rights of audience for solicitors and solicitor-advocates may well give rise to a question as to whether it is appropriate for the Advocate General to be drawn from their ranks as well as the Faculty of Advocates. I suggest to the noble and learned Lord, Lord Mackay of Drumadoon, that it would be appropriate to consult a number of interests before proceeding along this line. In view of the wide range of the Advocate General's responsibilities, both formal and informal, it is essential that he commands the full confidence of the courts. Ultimately, the question of who should be appointed is a matter for the Prime Minister of the day. Someone of standing in the law will undoubtedly be required. Why should we confine the choice of the Prime Minister to advocates and solicitors? Why should the Prime Minister not be entitled, if he thinks it appropriate, to appoint a professor who is not a member of either branch of the profession?
I turn to the point raised by the noble and learned Lord, Lord Fraser of Carmyllie. The purpose of the subsection is to deal with the situation in which there is a temporary vacancy and to mirror the situation which applies in relation to the Lord Advocate. If the Lord Advocate is temporarily absent or the office is temporarily vacant, then the duties of that office are fulfilled by the Solicitor-General for Scotland. It was felt necessary to have a provision to enable the duties to be performed during a short period of time pending the appointment of a replacement Advocate General. This subsection arises because there is no second Scottish law officer to the United Kingdom Government.
Lord Fraser of Carmyllie: I am very grateful for the explanation just given by the noble and learned Lord. I appreciate that in the event of, say, the sudden death of the Advocate General something may have to be done. I just wonder whether at Report stage the noble and learned Lord will, given the argument that he has just advanced, accept an amendment tabled by me based on the temporary vacancy of the office of Advocate General. Would that satisfy the noble and learned Lord?
Lord Hardie: As always, I shall consider any amendment that the noble and learned Lord tables at the appropriate time. If he chooses to table such an amendment, it will be given appropriate consideration. With those explanations, I invite the noble and learned Lord to withdraw his amendment.
Lord Mackie of Benshie: Will the noble and learned Lord answer a question from me on this important matter? Can he think of another suitable example other than a professor of law?
Lord Hardie: The examples that I gave were thought up as I sat on the Front Bench. At present I cannot, but I should not want that to be taken as indicating that there are no other examples.
Lord Mackay of Drumadoon: As I understand what the noble and learned Lord said, the position may be slightly different from what was said in relation to the previous amendment, where I understood the response was that it would not be appropriate for a solicitor, whatever his qualifications and experience, to be Lord Advocate or Solicitor-General. The noble and learned Lord asked me, "Why confine the Prime Minister"?. In the Bill the Government are seeking to create a new post--that of Advocate General for Scotland. For the reasons advanced so eloquently by the noble and learned Lords, Lord Hope and Lord Rodger, it is important that the qualifications for holding that post should be on the face of the Bill.
I regret to say that I do not find the answer acceptable. There is an important point of principle here as to whether the Government accept that a solicitor could hold the post. I seek to test the Committee's opinion.
11.16 p.m.
On Question, Whether the said amendment (No. 290C) shall be agreed to?
Their Lordships divided: Contents, 21; Not-Contents, 46.
Balfour, E.
Biddulph, L.
Chesham, L.
Clyde, L.
Courtown, E. [Teller.]
Ellenborough, L.
Fraser of Carmyllie, L.
HolmPatrick, L.
Hope of Craighead, L.
Kintore, E.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Monro of Langholm, L.
Montrose, D.
Newton of Braintree, L.
Rowallan, L.
Sanderson of Bowden, L.
Selkirk of Douglas, L.
Sempill, L. [Teller.]
Stair, E.
Alli, L.
Amos, B.
Bach, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L. [Teller.]
Clinton-Davis, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gordon of Strathblane, L.
Goudie, B.
Grenfell, L.
Hacking, L.
Hardie, L.
Hayman, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Jay of Paddington, B. [Lord Privy Seal.]
Linklater of Butterstone, B.
McIntosh of Haringey, L. [Teller.]
Mackie of Benshie, L.
Mar and Kellie, E.
Monkswell, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Steel of Aikwood, L.
Thornton, B.
Tomlinson, L.
Uddin, B.
Watson of Invergowrie, L.
Whitty, L.
Williams of Mostyn, L.
Resolved in the negative, and amendment disagreed to accordingly.
11.23 p.m.
Lord Mackay of Drumadoon moved Amendment No. 290D:
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