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Lord Selkirk of Douglas moved Amendment No. 141:
The noble Lord said: My Lords, this issue was ventilated in earlier debates on the Bill. As the House well knows, in the 1920s the issue was raised as to whether the Lord Advocate can be either an advocate or a solicitor. At that time there was a proposal that a Glasgow solicitor should be appointed Lord Advocate. That proposal was rejected. Since then thinking has advanced considerably. Indeed, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which I took through the House of Commons, gave to solicitors the right to apply for rights of audience in the higher courts. I took that Bill through and believe strongly that solicitors should not be discriminated against when they are solicitor advocates and qualified as such. It is reasonable that suitably qualified solicitors should be able to become Lord Advocate and this amendment seeks to ensure that there is no bar to a solicitor becoming Lord Advocate.
Solicitor advocates can choose to be qualified either in the higher civil courts or in the higher criminal courts or in both. I can well understand that the Lord Advocate might advance the view and insist on only solicitor advocates who are qualified in both civil and criminal law being considered for appointment. I believe that it will be a sad day for Scotland if the Lord Advocate seeks to close off the tap to a considerable reservoir of legal talent. If he will not agree to this amendment, I hope that in due course noble Lords will seek to test the opinion of the House. I beg to move.
Lord Fraser of Carmyllie: My Lords, this is a matter which has been considered previously during Committee stage. When it fell to the noble and learned Lord the Lord Advocate to respond he said,
When I read those words a tear of reassurance welled in my eye to know that the noble and learned Lord the Lord Advocate was still properly discharging the task that he previously occupied as shop steward for the Faculty of Advocates and that even in this soi-disant, radical Government the courses of reaction should be so prominent. I was pleased and reassured by that.
However, when we came to deal with the matter at a later stage when my noble and learned friend Lord Mackay of Drumadoon moved an amendment that the Advocate-General, which was a newly-created post, should be qualified as an advocate or a solicitor under the Solicitors (Scotland) Act 1980, in response the noble and learned Lord the Lord Advocate said,
He is still absolutely on track and discharging the proper responsibilities of a shop steward. He continued:
I am still deeply reassured that the noble and learned Lord still has these characteristic reactions within his thinking. He continued,
Up to this point I am really charmed by the argument and very keen to part company with my noble and learned friend Lord Mackay of Drumadoon. Suddenly, a couple of minutes later, the Lord Advocate gets a radical spring in his step and goes on to ask why issues of qualification should be put in statute. He said:
That might be a good argument. It is certainly an alternative argument. What we need to resolve this evening is whether the argument which the noble and learned Lord first advanced, that there are unwritten rules about the role of the Scottish Law Officers and that we should not have them in any sense put about with express requirements, but should leave the practice as unwritten--that is an exceptionally good ruse to ensure that it remains within the purview of the Faculty of Advocates--is his true position rather than the
More seriously, I must advise the Government that those are two distinct arguments and it is not possible to ride both of them at the same time. If the noble and learned Lord thinks that it is time to acknowledge, as my noble friend Lord Selkirk of Douglas indicated, that there are those now qualified in the law of Scotland in respect of whom there is no reason why they should not become Lord Advocate or Solicitor General, given the rights of audience that they enjoy in the higher courts, then we should now put it on the face of the statute, or at least acknowledge that solicitors with those qualifications should be capable of occupying any one of the three roles. It is time to bring this to an end. We must discover whether these three high legal offices in the law of Scotland are to be open on a far wider basis or whether there will continue to be the narrow restriction pursued in the past.
Lord Renton: My Lords, a very powerful argument in favour of the amendment moved by my noble friend Lord Selkirk of Douglas and an argument which has not yet been put before the House is that the amendment would have the advantage of removing at last the historic anomaly whereby a solicitor may not become Solicitor-General.
Lord Mackay of Ardbrecknish: My Lords, I intervene only briefly in this debate because, as the House knows, I am the only Mackay who is not a lawyer. Therefore, I am here in the guise of referee.
I have not yet heard the argument of the noble and learned Lord the Lord Advocate, but he will have to work pretty hard to convince me that my noble friend Lord Selkirk of Douglas does not have a point. From the outside, there appear to be some pretty archaic and arcane divisions in the legal profession. Perhaps I say that because my son is a solicitor and would not qualify for either of these high offices, although I doubt whether he would want to be considered. It seems a bit ridiculous in this day and age, especially when some solicitors are allowed to appear in the higher courts, that a distinction should still be made with regard to the offices of Lord Advocate and Solicitor-General.
Unless my noble friend Lord Selkirk of Douglas is convinced by the arguments which are about to be led by the noble and learned Lord the Lord Advocate, I shall be happy to support him in the Lobby if he chooses to press the amendment to a Division.
Lord Hardie: My Lords, as has been said, the amendment would require the law officers to the Scottish executive to be legally qualified in Scotland either as an advocate or as a solicitor. That is the extent of the amendment. It does not specify that any solicitor has to have rights of audience, so we could be talking in terms of an advocate or solicitor of one day's standing being appointed. I am sure that that was not the intention.
As noble Lords will be aware, the offices of Lord Advocate and Solicitor-General are held by custom by senior members of the Scottish Bar. The noble and learned Lord, Lord Fraser of Carmyllie, is correct that that was the position that I adopted both at the last Committee stage and in respect of the Advocate General. As I explained in Committee, it has not been felt necessary in the past to prescribe the qualifications for office of the Law Officers and I am still at a loss to understand why that is necessary now. To do so would be inconsistent with the Government's intention to legislate for a responsible parliament and executive which can be expected to ensure that holders of those vital offices are qualified for them. Surely that is the only question for the First Minister and the executive of the day.
As the noble and learned Lord, Lord Fraser of Carmyllie, stated, I referred at the Committee stage to the memorandum prepared by the first Lord President Clyde in 1924. In referring to that memorandum I did not say that I considered it inappropriate to appoint as Law Officers anyone who is not a member of the Faculty of Advocates, as the noble Lord, Lord Mackay of Ardbrecknish, has suggested.
The question of a possible appointment of a solicitor to one of these offices is a matter which is not really appropriate for this Bill. As with the appointment of any Minister, including the Law Officers, the decision as to who should be appointed is essentially for either the First Minister in Scotland or the Prime Minister in the context of the United Kingdom. There is nothing in the Bill to prevent a suitably qualified solicitor from being appointed as a Scottish Law Officer. But, just as I would not expect an advocate of one day standing to be appointed, I would not expect a solicitor of one day standing to be appointed.
The advent of rights of audience for solicitors and of solicitor-advocates may well give rise to a question as to whether it is strictly necessary for the Lord Advocate and the Solicitor-General to be drawn only from the Faculty of Advocates. I would suggest to the noble Lord that there are a number of interests which it would be appropriate to consult before proceeding with any change on this matter. In view of the wide range of the Law Officers' responsibilities, both formal and informal, the most important qualification is that he or she should command the respect of the courts, the respect of the legal profession and the respect of those that the Law Officers are appointed to advise, including the Scottish parliament.
At a previous stage of the Bill, the noble and learned Lord, Lord Hope of Craighead--who is not in his seat this evening--emphasised that the most important qualification was the need for someone of standing in the eyes of the court. That is the qualification that is required, not the formal qualification.
While it is true that more solicitors are seeking rights of audience in the supreme courts, they may only have rights if they satisfy certain criteria. Even then, at the present time very few have rights in both Supreme Courts--civil and criminal. Part of the function of the Lord Advocate is to deal with both civil and criminal
As I indicated at the outset, the amendment as it is framed could result in a newly-qualified advocate or solicitor, with no standing in the eyes of the courts, being appointed.
Page 20, line 16, at end insert--
("( ) The Lord Advocate and Solicitor General for Scotland shall each be qualified as either--
(a) an advocate, or
(b) a solicitor under the Solicitors (Scotland) Act 1980.").10.30 p.m.
"It is said that it was a radical suggestion that a solicitor should be appointed as Lord Advocate. The Lord President of the day--Lord President Clyde--wrote a memorandum to Downing Street, which was published. That memorandum states clearly that it is part of the unwritten constitutional law of the land that the Lord Advocate and Solicitor-General for Scotland are appointed from among the members of the Scottish Bar. That springs, in the same way as other parts of the law, from long custom. It has not been felt necessary in the past to prescribe the qualifications for office of the Scottish Law Officers and it is not clear why that should be necessary now".--[Official Report, 28/7/98; cols. 1484-5.]
"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".
"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?"--[Official Report, 6/10/98; col. 376.]
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