Standards, Procedures and Public Appointments Committee

Meeting date: Thursday, May 16, 2019

Official Report 518KB pdf

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Correspondence

Agenda item 5 is consideration of correspondence that the committee has received from Mike Rumbles MSP, who has joined us, and from Adam Tomkins MSP, regarding law officers answering questions in the chamber. The committee considered this correspondence previously, at our meeting on 28 February, and agreed to write to the Scottish Government to seek its views on the points raised.

Before I invite comments from members—and I believe that people will be comfortable with this—I ask Mike Rumbles to make a relatively short statement. We have a lot of business, but I think that it is only fair that Mike Rumbles gets an opportunity to speak.

I thank the committee for the opportunity to speak about my request that a recommendation be made to Parliament to update rule 13.7.1 of standing orders.

The standing orders are the oil that helps the machinery of Parliament to work; I know that from being a member of the Parliamentary Bureau for two parliamentary sessions. The background is that, after the Lord Advocate made a statement to Parliament in February last year, he took 14 questions from members of the Scottish Parliament on matters not related to his role as head of the prosecution service. I waited 11 months to win a place on the ballot to ask an oral question at a portfolio question time session entitled, “Justice and the Law Officers”. Imagine my surprise and disappointment when the Lord Advocate did not answer my question but remained seated in the chamber—or imagine that you had asked a question of the Minister for Public Health, Sport and Wellbeing only to have it answered by the Minister for Parliamentary Business and Veterans while the health minister looked on.

That situation has exercised my mind for nearly four months. I would like to comment on the letter that you have received from the Minister for Parliamentary Business and Veterans. First, he says:

“The flexibility offered in Rule 13.7.1. allows for instances when a Law Officer may not be available to attend proceedings in the Chamber.”

I could not agree more with that point; I am absolutely relaxed about that. That is what standing orders are designed to do if the minister—or, in this case, the Lord Advocate—cannot make it to proceedings. However, the Lord Advocate was sitting in the chamber listening to what I had to say.

The minister goes on to say:

“there is no procedural impediment to the Lord Advocate or the Solicitor General ... as Ministers ... responding to oral ... questions”.

That is because the Scotland Act 1998 and the standing orders make it absolutely clear that the law officers are to be treated in the same way as other Scottish ministers, so, again, I could not agree more. That is how things used to operate until January, but it is not how things have operated since January.

In his letter to the committee, the minister writes at length about the law officers’ legal advice to the Government but that is not what my question was about; I had no intention of asking what the Lord Advocate’s advice to the Government was. If I had asked about that, I would not have expected an answer. That is not what I was asking about and I subsequently told the Lord Advocate that.

In his conclusion—having gone off on a tangent about legal advice, which I did not ask about—the minister states that he believes that the

“Standing Orders are fit for purpose.”

My specific request to the committee is that it consider recommending the updating of rule 13.7.1. In the very last sentence, referring to the First Minister in this case, rule 13.7.1 states:

“An oral question selected for answer at First Minister’s Question Time shall normally be answered by the First Minister but may, if the First Minister is unable to attend First Minister’s Question Time or any part of it, be answered by another member of the Scottish Government.”

That is reasonable—that is how we have operated and it is how we should operate. I suggest replacing the second sentence in rule 13.7.1 with, “An oral question concerning the responsibilities of the Lord Advocate or the Solicitor General for Scotland should normally be answered by them but may exceptionally be answered by another member of the Scottish Government if they are unable to attend the chamber.”

I am not making a political point at all. We can leave political points for the chamber. I am trying to make sure that we, as MSPs, have the right opportunity to question ministers of the Government. That is our role and standing orders should reflect that. Until now, or certainly until January, standing orders have been sufficient when the Government has recognised that. Although the minister says in his letter that there is no impediment to the Lord Advocate or the Solicitor General answering those questions, the Government chose not to ask them to answer them.

10:15  

I would have thought that our job as MSPs is to make sure that we have standing orders that are fit for purpose and which make it clear what we intend. If an MSP asks a question of the Lord Advocate or the Solicitor General acting in their responsibility, he or she would expect an answer from them, in the same way as they would expect an answer from any other minister. If the law officers cannot be in the chamber, that is perfectly acceptable but, in this case, that would not have been an issue if I had not seen the Lord Advocate sitting in the chamber. If the Lord Advocate had not been there, I would have assumed—probably wrongly in this case—that he was busy elsewhere, which would have meant that it would have been fair enough if another minister had answered. That was not what happened, and I do not want that to have set a precedent.

In my view, in cases such as this, standing orders are not fit for purpose and we need to change them.

I thank Mike Rumbles for his contribution and invite comments from members.

I have a comment rather than a question. The second sentence of rule 13.7.1, to which Mike Rumbles referred, starts:

“An oral question concerning the operation of the systems of criminal prosecution and investigation of deaths in Scotland”.

Are you saying that that is too limited? Was your question beyond that? Is it a question of who decides what the Lord Advocate’s remit is?

The Lord Advocate’s remit is as it is laid out in that second sentence of rule 13.7.1. The Lord Advocate is the head of the prosecution service, which is why it is in there. I have been here for 20 years, as you have—albeit with an intermission in my case—and, in those 20 years, that is how the Lord Advocate and the Solicitor General have operated.

However, that changed in February last year, which is why I think that we need to update our standing orders. It changed when the Government put forward the Lord Advocate to make a statement to Parliament and 14 MSPs asked questions of the Lord Advocate, which were not about the prosecution service, which is in the Lord Advocate’s remit. My question was accepted by the chamber desk, and I waited to be selected in the ballot. I asked the oral question, which was perfectly acceptable, and the Government—not Parliament—decided that the Lord Advocate should not answer it. That is why I think that the system has changed. In his letter to me, the Lord Advocate said that it was unprecedented that he has made a change, but the Government has now set the precedent.

It means that, at any time, the Government can decide whether to put the Lord Advocate in front of members if it wants to take questions. However, we should be holding the Government to account. It is the job of all MSPs who are not members of the Government, whether or not they are in the Opposition, to hold the Government to account, and the Lord Advocate and the Solicitor General are part of the Government. A change was made to the system in February last year that is not reflected in this paragraph in standing orders.

I am only making a suggestion. If the committee decides to go away with the clerks and suggest something else, I will be happy with that, so long as the issue is addressed.

It should be clear that the Lord Advocate and the Solicitor General should be able to answer questions on points under their remit.

The issue—if there is an issue—lies in that sentence. That is what the standing orders say at the moment so, if a question is not on one of those two areas, it seems reasonable for the Government to decide who answers it. However, if the remit has changed, we need to look into that a bit further before we make a decision on it.

I agree with Mike Rumbles and Adam Tomkins, who raise a valid concern about precedent. The standing orders were breached in the context of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. The Government cannot have it both ways.

Mr Rumbles suggested a different form of words for the second sentence in rule 13.7.1 on oral questions in the chamber. I did not catch or write down his words, but I am sure that he has a copy of them. There might be an opportunity for the committee, the committee clerks and the lawyers of the Parliament to consider his form of words and perhaps even improve on them, bearing in mind the point that he raised, which I find myself supportive of.

On a point of order, convener. Are we in the general debate or are we still directing questions to Mike Rumbles? Is he going to participate in this debate?

Mr Rumbles has made his statement so we are now having our discussion.

We are in debate—okay.

Mr Rumbles has raised a point that requires detailed discussion and study. As always, getting it right is all about the detail and the small print, and we must spend sufficient time looking at the issue and reaching a conclusion at some point.

I have some sympathy with the point that Mike Rumbles raised. In particular, Elaine Smith’s point about whether the remit has changed is worth looking at in more detail.

It could be dangerous for us to write into the standing orders exactly who should answer which question. I can give the opposite example to that of Mike Rumbles: I sometimes ask questions of particular cabinet secretaries and wish that another cabinet secretary would answer. In a way, it is a question about collective cabinet responsibility and joined-up government. There are times, particularly with cross-portfolio issues, when greater engagement from other cabinet secretaries would be good. I know that the question is specifically about the Lord Advocate, but there is a wider issue about pinning into the standing orders which bit of the Government must answer which question and when.

I appreciate the frustration that Mike Rumbles felt when he asked his question—it was palpable—but I am not convinced at the moment. On Elaine Smith’s point, if the remit was changed, that would be—

Can I just—

On a point of order, convener. If this is a debate with an external member—

It is not.

Fine.

I am afraid, Mr Rumbles, that this will be discussed within the committee and we will come back to you. We cannot have an argument across the committee.

I just want to ensure that there is no misunderstanding.

I understand you, so I think that it is okay. Please do not be concerned.

What we do not have here, unfortunately—I should have looked it up myself—is the answer to whether Mr Rumbles was unsatisfied with the answer to his question.

You cannot ask him a question. You should just make your point.

We should either be asking questions, having a debate and then Mike Rumbles leaves, or we should all be discussing the issue. We are all over the place today.

This public discussion is an opportunity for members to make their points of view known. We will follow up the matter. We can have a bit of discussion about what Mike Rumbles has presented, but it is not open to him to take part in that discussion—this is about members making their contributions.

Okay. Regardless of who in Government answered the question, the answer would probably have been the same. At stake is the legal advice that is provided to the Scottish Government, which normally remains confidential. As other members have mentioned, the other issue is what the standing orders say about what matters the Lord Advocate is in Parliament to answer.

One of the primary issues at stake is the power of a Government to govern. If a member asks a question of the Government, it is for the Government to decide who will answer that question. The standing orders say not that the First Minister must answer an oral question at First Minister’s question time, but that the First Minister will “normally” answer such questions. There is no imperative in that regard. It may well be that a precedent has been set, although I do not take that as read. The Presiding Officer might have allowed the situation that has been raised to go ahead, but he should have ruled if it was not in the scope of any individual minister to make a response—that would be the point at which that should have been corrected. The fact that that may have happened does not mean that we need to change our standing orders. There must be protection for Government.

It is almost a precedent that Government would not divulge what legal advice it had sought and received. What if a question inadvertently elicits that information? Any Government and its ministers must be allowed to seek legal advice. They do so almost daily—those who have been ministers will know that. It is imperative that their right to refuse to divulge that legal advice—which they may well do—is protected, otherwise the matter could become politicised.

Having said all that—I hear what my colleagues are saying about looking at what has been presented about a precedent having being set—I am happy to look at the issue. Why not? This is a democracy. Let us look at the matter and see what we can come up with. However, there are principles at stake from which we should not shift.

If someone thinks that they want to change the standing orders now because doing so would be advantageous to them, they have no ambition to be the next Government. This is about protecting the future of this Parliament and protecting Governments’ right to govern, make change, listen to advice and not have their position compromised because they have rejected the legal advice.

I agree with a lot of what Gil Paterson has said, but Mike Rumbles said in his statement that his concern is not to do with the provision of legal advice—I think that he said that the Government response to the committee on those terms was a red herring. The question for us is whether we want to look a bit further at the standing orders. Rule 13.7.1 talks about the First Minister and other ministers and specifically mentions the Lord Advocate and the Solicitor General for Scotland. As I said at the beginning, we have to look at whether the only questions that they should be answering are on

“the operation of the systems of criminal prosecution and investigation of deaths”

and whether that remit has changed. If the answer is yes, do the standing orders need to be updated to reflect that? The rule says that such questions

“shall normally be answered by the Lord Advocate or the Solicitor General for Scotland but may exceptionally be answered by another member of the Scottish Government.”

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If a question was to

“exceptionally be answered by another member of the Scottish Government”,

which is wording that I think must stay, I presume that the Scottish Government would be able to justify the exceptional nature of another member of the Government answering the question, rather than the Lord Advocate.

It would not have been an issue had the Lord Advocate not been in the chamber, because I suppose that we would all have presumed that there were exceptional circumstances, and we would not have wanted to delve into them in case they were personal circumstances. However, the issue arose, because the Lord Advocate was in the chamber.

I think that we need to have a closer look at the remit. Is it just

“the systems of criminal prosecution and investigation of deaths”

or is it wider than that? If it is now wider, perhaps that sentence needs to be tweaked to reflect that.

I agree. I think that there is a piece of work to be done here. It may be that parliamentary lawyers, having looked at the matter, will come to the view that there is no change to be made, but I think that Mr Rumbles and Mr Tomkins have raised a very valid point. It is worth having a look at it, and if there is a recommendation to be made and brought to this committee, they will be able to evaluate that advice at that time.

Tom, do you agree?

Yes.

Mark, do you agree as well?

Yes.

Right—thank you. I did not want us to get into a long, twisting discussion and argument. It has been useful to hear members’ feelings about what has been said, and it is all on the record. The subject will be brought back to us in a further paper. At our next meeting, we will have a general catch-up evidence session when the Minister for Parliamentary Business and Veterans comes to speak to us; we could discuss the issues further with him then, if that seems reasonable to everyone.

Members indicated agreement.

We will do that. I thank Mike Rumbles for coming along today.

I thank members for listening so carefully to what I had to say.

That ends the public part of the meeting.

10:32 Meeting continued in private until 10:51.