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Lord Mackay of Ardbrecknish: My Lords, perhaps I may intervene. I am puzzled by that particular line of argument. Is there anything in the statute now that prevents a lawyer who was admitted to the Bar yesterday being appointed Lord Advocate? I understand that there is not. It is common sense that he or she would not be. It is not a terribly good argument for the noble and learned Lord the Lord Advocate to be advancing that, somehow or other, this amendment would mean that people would take leave of their senses and appoint somebody who had just been admitted to the Bar.

Lord Hardie: My Lords, I accept that there is no question of any statutory provision about the qualifications that are required at present. It is a matter of custom. As I have said, the noble and learned Lord, Lord Hope of Craighead, emphasised that the most important feature was the candidate's standing in the eyes of the court.

10.45 p.m.

Lord Fraser of Carmyllie: My Lords, I am most grateful to the noble and learned Lord for giving way. When we discussed the issue of the qualifications of the Advocate-General in Committee on 8th October, it was the noble and learned Lord the Lord Advocate who drew the parallel between the qualifications of those who held the office of Lord Advocate and Solicitor-General and the qualifications of the person who might be appointed to this new office of Advocate-General. Perhaps I may say to the noble and learned Lord that it seems to be an entirely apt parallel to be drawn. But where the noble and learned Lord loses me in his argument is that he has indicated that the qualifications of the Lord Advocate and Solicitor-General might be subsequently determined by the Scottish parliament. However, that cannot be true in respect of the Advocate-General because he will be an officer of the Westminster Parliament. If the Government are to develop a consistent argument, it must be true that what is said about the Lord Advocate and the Solicitor-General is equally true of the position of the Advocate-General.

Lord Hardie: My Lords, the noble and learned Lord will be aware that this amendment deals with the qualifications of the Lord Advocate and the Solicitor-General and not the Advocate-General. We had a vote on the Advocate-General and the House decided the issue. As far as concerns the Lord Advocate and the Solicitor-General, the fact of the matter is that

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after May that matter will be devolved. Is it appropriate for this Parliament to stipulate what qualifications should be required of these two offices, which will be offices of the Scottish parliament? At the end of the day, it will be a matter for the First Minister to decide who he will appoint, and there is nothing to prevent him from appointing a solicitor or a professor of law. It would have to be someone who had a standing in the eyes of the court.

Lord Fraser of Carmyllie: My Lords, the noble and learned Lord keeps saying that it will be someone of standing in the eyes of the court. I would hope that whoever is the Premier would appoint someone to these offices who enjoyed a standing in the eyes of the court. However, I have to say that it seems to me to be essentially an irrelevance because in appointing this individual it would be wholly unprecedented for the Prime Minister of the United Kingdom formally to request an opinion of the Scottish courts as to whether "X" was acceptable in the eyes of the court. It is a matter which lies within the political judgment of the First Minister or the Prime Minister of the day. I do not think the noble and learned Lord can escape by looking towards what might be the attitude of the court on the acceptability of a particular individual's qualifications and experience as a way to ensure that the right person was available.

Lord Renton: My Lords, before my noble and learned friend sits down, does he agree that within living memory, and perhaps going back centuries, every Law Officer on both sides of the Border has been appointed because he was already a King's Counsel or a Queen's Counsel?

Lord Fraser of Carmyllie: My Lords, with the leave of the House, I do not think I can respond to that point because I had intervened in the speech of the noble and learned Lord the Lord Advocate.

Lord Hardie: My Lords, to answer the point raised by the noble Lord, Lord Renton, I think that there have been one or two exceptions in recent years. The noble and learned Lord, Lord Fraser of Carmyllie, could confirm his status at the date of his appointment as Solicitor-General. I think that the last Solicitor-General was made a Queen's Counsel the day before his appointment. It was certainly fairly close to it.

I accept that this is a political issue for the Prime Minister or the First Minister of the day. However, the noble and learned Lord, Lord Fraser, will be aware that Prime Ministers--and, it is to be hoped, the First Minister--will not operate in a vacuum and will make appropriate inquiries about prospective candidates so that they will know what view the court may hold of a particular prospective candidate.

In short, I go back to the position outlined by the noble and learned Lord, Lord Hope of Craighead, that it is essential to have someone who has the confidence of the court. We know that, in practice, the politicians will take soundings to ensure that the appropriate person has that. All I am saying is that it is not

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appropriate to fetter the discretion of the First Minister by putting on the face of the Bill qualifications which may in fact have the effect of excluding certain candidates. In those circumstances, I ask the noble Lord to withdraw the amendment.

Lord Steel of Aikwood: My Lords, before the Minister sits down, I should like to make one point. It seems to me that the noble Lord, Lord Selkirk of Douglas, is simply trying to extend the range of people from whom the Premier may appoint the Lord Advocate and Solicitor-General. If it is a choice between the Lord Advocate quoting from the grandfather of the noble and learned Lord, Lord Clyde, in 1922 and custom or the radicals on the Conservative Benches, I think, on balance, we prefer the latter.

Lord Hardie: My Lords, perhaps I may deal with the noble Lord's point. It is not a question of extending the range of people from whom the Prime Minister may choose. I have said that the Prime Minister can choose whom he wishes, but the practice has been to appoint someone who has had a certain standing in the courts and someone who, traditionally, has been at the Bar--almost invariably at the senior Bar. Therefore, I am not restricting the Prime Minister's choice; nor, indeed, am I restricting the First Minister's choice. The latter will simply choose who he or she thinks is the appropriate candidate to be Lord Advocate or Solicitor-General.

Lord Selkirk of Douglas: My Lords, I have listened most carefully to what has been said and I am very grateful to noble Lords for their support of my amendment. I am particularly grateful to the noble Lord, Lord Steel of Aikwood. Indeed, he is absolutely right to suggest that what we are seeking to do is to extend the categories of those who could be eligible for consideration.

Of course, I fully accept that the noble and learned Lord the Lord Advocate is correct to say that rights of audience in both courts would be necessary and also that the person concerned should be of standing in the eyes of the court and have its confidence. However, the noble and learned Lord advanced an argument that appointments in the past have only been made by custom and that, by custom, those appointed have been advocates.

If I may say so, during all the long and distinguished years in which Lord Advocates have been appointed, not one woman has ever been appointed. It could equally well be argued that women have not been appointed as a matter of custom. I would not for one second defend that particular argument, but what we want is the best man or woman for the job. That is the test: the best man or woman for the job, and one of standing in the eyes of the court. The person might be an advocate or a solicitor/advocate; indeed, it might be a man or a woman. However, either way, we should aim for advancement on merit. Because the noble and learned Lord is reluctant to accept that principle, I seek to test the opinion of the House.

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10.53 p.m.

On Question, Whether the said amendment (No. 141) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 71.

Division No. 3


Annaly, L.
Attlee, E.
Blatch, B.
Byford, B.
Carlisle, E.
Carnegy of Lour, B.
Carnock, L.
Chesham, L.
Courtown, E. [Teller.]
Dixon-Smith, L.
Ellenborough, L.
Fraser of Carmyllie, L.
Henley, L.
HolmPatrick, L.
Hope of Craighead, L.
Kingsland, L.
Luke, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Mackie of Benshie, L.
Mar and Kellie, E.
Monson, L.
Montrose, D.
Northesk, E.
Phillips of Sudbury, L.
Renton, L.
Rowallan, L.
Selkirk of Douglas, L.
Steel of Aikwood, L.
Strathclyde, L. [Teller.]
Thurso, V.
Tordoff, L.
Wilson of Tillyorn, L.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Chandos, V.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Harris of Haringey, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B. [Lord Privy Seal.]
Judd, L.
Kennedy of The Shaws, B.
Kintore, E.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Monkswell, L.
Nicol, B.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Sawyer, L.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tomlinson, L.
Turner of Camden, B.
Uddin, B.
Whitty, L.
Williams of Mostyn, L.
Winston, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

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28 Oct 1998 : Column 2037

11.1 p.m.

Clause 46 [Junior Scottish Ministers]:

[Amendment No. 141A not moved.]

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