Plenary,

Meeting date: Tuesday, May 18, 1999

Official Report 386KB pdf

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Law Officers

I must inform Parliament that there is an error in the business bulletin. The meeting tomorrow will begin at 10 am and not at

9.30 am as was stated. I begin the proceedings this afternoon by informing members that Her Majesty has appointed the Parliament's nominee, the right hon Donald Dewar, as First Minister.

The first business is a debate on a motion of the First Minister concerning the appointment of the law officers. Notice of the motion was given on Monday and was published in today's business bulletin.

On a point of order, Presiding Officer. Could you give me some guidance on the process following the election of the First Minister? I collected a copy of the document "Partnership for Scotland" from the document office earlier today. It contains the agreement that underpins the appointments that we will be asked to approve in Parliament tomorrow. Will we have the opportunity to debate the contents of that document and its proximity to the election manifestos of the two parties that have supported this agreement before we are asked at tomorrow's meeting to support the nominees who will be put before us in the motion that has been tabled by the right hon Donald Dewar?

I am certain that any such reference would be in order in tomorrow's debate and I would be surprised if there were not references to the document that you mentioned.

Consideration of the First Minister's motion will take place in a moment and I will put the question on that motion no later than 30 minutes after it has been moved. That debate will be followed by a debate on the motion of Mr Alex Fergusson on the subject of prayers. The text of that motion was printed in today's business bulletin and I intend to put the question on it no later than one hour after it has been moved.

In accordance with section 48(1) of the Scotland Act 1998 it is for the First Minister to recommend to Her Majesty the appointment of persons to be the Lord Advocate and Solicitor General for Scotland. Before doing so the First Minister must have the agreement of Parliament.

I do not regard this as a routine motion in any sense, but I hope that it is reasonably uncontentious—we will discover whether it is in the next few minutes. I am conscious of the fact that this is a short debate and that therefore it would be wrong of me to take too much time. However, I want to make it clear that the motion—which I have pleasure in moving—is to seek the agreement of the Parliament to the appointment of Andrew Hardie as Lord Advocate and Colin Boyd as Solicitor General for Scotland. If members agree to the motion, as First Minister I will recommend to Her Majesty that those appointments should be made.

The Lord Advocate and Solicitor General for Scotland are currently the Scottish law officers in the United Kingdom Government but on 20 May— which is imminent—they will cease to be members of the UK Government and the offices will transfer to the Scottish Executive. That fact dictates the timing of this motion.

The Scottish law officers will become members of the Scottish Executive on 20 May—before other Scottish ministers—because they have to be in place so that they can offer legal advice to the Executive in the run-up to 1 July, which is the day on which Parliament assumes its full powers. Arrangements have been made to ensure an appropriate distribution of the Lord Advocate's functions during the transitional period from 20 May to 1 July.

As most members will know, the offices of Lord Advocate and Solicitor General have been with us for a long time. The office of Lord Advocate has existed since at least the 15th century. I think that the Solicitor General arrived late—somewhere around the 17th century—but the positions have been important parts of the administration of justice and of politics in Scotland for many years. They have been the power base; in fact, the office of Lord Advocate ran Scotland on many occasions and the Lord Advocate was very much the man of affairs for the government of the day.

The offices are still central—in a different way— to the government of Scotland. They will continue

to be the principal Scottish law officers—the Lord Advocate in particular, with the Solicitor General continuing to be his deputy—and they will work as a team.

The functions conferred on the Scottish ministers generally can be exercised by any of them, but there are exceptions, the most important of which is the Lord Advocate, who will retain those functions that he exercises immediately before he ceases to be a minister of the Crown. Those retained functions, which are retained in statute, are functions that he will continue to exercise as a member of the Scottish Executive; they can be exercised only by the Lord Advocate and the Solicitor General. In other words, the functions cannot be passed around or swapped around—they remain firmly with the holders of those offices.

That is significant in particular areas. The Lord Advocate will be the law officer to the Scottish Executive. His functions as law officer will be retained functions and will, as I said, include providing legal advice to the Scottish Executive and representing the Scottish Executive in legal proceedings.

The Lord Advocate's role as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland will also be a retained function. As most members will know, the independence of the Lord Advocate in that role is entrenched in the Scotland Act 1998. Section 48(5) confirms that the Lord Advocate's decisions as head of those systems must be taken independently. Section 29 provides that it is outwith the legislative competence of the Parliament to remove the Lord Advocate from his important independent position as head of the system of criminal prosecution.

The Lord Advocate and the Solicitor General have to shoulder an onerous role, which is a bulwark of our justice system. That is the order of the day in the courts of Scotland—although, as we all know, there are sometimes spectaculars, such as the events that will shortly take place in Holland. However, I suspect that the Lockerbie trial will cease to be quite so contentious in parliamentary terms because we do not have Tam Dalyell with us—at least not in this forum.

I stress to members that the Lord Advocate and the Solicitor General have full powers to serve on committees, to speak in debates and to answer questions in this Parliament. They lack one important power—the right to vote. Apart from that, they will, as I understand it, have a full sweep of activity—when it is judged appropriate and when their services are required.

For the record, I should mention that there is now a new office of Advocate General for

Scotland, which has been created by the Scotland Act 1998. The Prime Minister announced yesterday that Dr Lynda Clark would be the first Advocate General. I take this opportunity to offer her my congratulations—and I hope those of all members—on her appointment. The UK Government will require advice on Scots law— fairly frequently, I imagine—and it is not possible for the law officers who are answerable to the Scottish Executive to give advice to the United Kingdom Government. That is why this post has been created.

I hope that this Parliament will confirm the law officers and that those law officers will add a great deal to our debates. I mentioned their sweep of responsibilities and their ability to contribute to our debates, but I should add that, under section 27(3) of the Scotland Act 1998,

"The Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if he considers that answering the question or producing the document— (a) might prejudice criminal proceedings in that case, or (b) would be contrary to the public interest." It is as well to put that on record, in case there is frustration later because it is not recognised and not known.

I have tried to be brief and to set out the structure of the argument. I have put the case rather impersonally, so perhaps before asking members to endorse the motion I should remind them that it relates to the appointment of two colleagues whom I know well and whom I like immensely. Their qualities have been tried and tested over two years in office, and I have been happy—fortunate, indeed—to be able to rely on their judgment, integrity and wise counsel during that period. I very much hope that my confidence will be shared by colleagues in every part of the chamber, that the motion will be passed and that Andrew Hardie and Colin Boyd will be recommended to Her Majesty for appointment.

I move,

That this Parliament agrees that it be recommended to Her Majesty that The Right Honourable The Lord Hardie QC be appointed as the Lord Advocate and that Colin Boyd QC be appointed as Solicitor General for Scotland.

Before I allow amendments to be moved, I should remind members that under rule 4.3 of the standing orders there are only two permissible amendments to this motion—to delete one or other part of the motion that relates to these two appointments.

Although amendments can be moved without notice, members will be aware from the business bulletin that I have encouraged them to lodge

notice of amendments and to intimate when they wish to speak in this debate. I took the view that that would help to ensure a sensible and orderly structure to the debate. Only one member has given notice that he wishes to speak. If any other members wish to speak, they should press their microphone button now and their names will come up on my screen.

The Scottish Conservatives do not object on a personal basis to the appointment of Lord Hardie and Mr Boyd to the offices of Lord Advocate and Solicitor General; indeed, we wish them well in fulfilling their important roles.

It is worth emphasising—as the First Minister did in his opening remarks—the importance of preserving the independence of the two offices. That independence should be respected by all parties in this Parliament and we should resolve that it should not in any way be undermined by the actions of the Executive.

From observation, it seems that there have been at least two fairly high-profile cases in the past year that have, at the very least, raised doubts about whether there has been political interference in the judgment of the Lord Advocate on prosecution matters and appeals against sentences. I do not wish to comment on the specifics of those cases; I simply want to say that doubts have been raised, as members will be aware.

To maintain public confidence in our system of independent prosecutors, it is important that there is not the slightest hint of political influence being brought to bear on future judgments. As the First Minister said, that independence is an important part of our justice system. It is also an important bulwark of this country's system of civil liberties and we would abandon it at our peril.

There are also areas in the remit of the law officers that are, I think, of concern to MSPs. We look forward to the opportunity of questioning the law officers on their roles—in a general sense if not on specific cases. As we said at the election, the Scottish Conservatives have real concerns about the increasing use of fiscal fines as a means of disposing of cases, and about the fact that a number of cases are being prosecuted in lower courts in the interests of saving money rather than of ensuring that justice is done.

We give notice to our new law officers that, in the months ahead, we will be questioning them and the new minister for justice closely on those matters. The public must have confidence in all aspects of our criminal justice system. As a party, we will seek to ensure that confidence is maintained and enhanced.

I support the appointment of Andrew Hardie and Colin Boyd as Lord Advocate and Solicitor General respectively. I wonder whether the First Minister or, if it is allowed, the Lord Advocate designate could explain how frequently the two law officers will appear in this Parliament to answer questions and to make statements.

It has been a long time since the House of Commons had the opportunity of questioning either a Lord Advocate or a Solicitor General. I accept what was said about the independence of the Lord Advocate as public prosecutor but, as law officer for the Scottish Executive, he must have some accountability to this Parliament. Can the First Minister give us some indication of how often we can expect to see the Lord Advocate and the Solicitor General to put questions to them on behalf of our constituents and the people of Scotland generally?

Andrew Hardie is a member of another Parliament; like you, Sir David, he is a member of the House of Lords. Could we have some assurance that his prime responsibility and first allegiance will be to this Parliament rather than to the House of Lords?

I will ask the First Minister to respond to that but I preface his remarks by saying that a timetable for questions has yet to be discussed by the Parliamentary Bureau. The law officers will obviously be included in that rota. Does the First Minister wish to add anything?

As Sir David said, there is to be discussion about the arrangements for question time. The consultative steering group report envisaged that there would be questions to the First Minister but that he would come to question time with a team of ministers—the questions would be answered as appropriate. I assure colleagues that—assuming that the business of the courts permits it—the law officers will deal in Parliament with the appropriate questions that have been lodged. The matter of the House of Lords is for Lord Hardie to determine, but he is very determined and, with the transfer that I hope will be agreed in the next few minutes, he has committed himself to serving in Scotland and this Parliament.

I do not wish to tempt Mr McLetchie into further details but I do not recognise the examples to which he referred. I say quite definitively that there has been a fine tradition under all Administrations of ensuring that the prosecution policy followed by the law officers is independent of the political wing

of the Government. We have endeavoured to adhere to that very strictly, as have all Administrations that I have known. I would be sorry if dark suspicions were harboured in the mind of the leader of the Conservative party. Perhaps he will take that up with me privately.

If no other member wants to speak, it is time to put the question on the motion. Since it is the first time that we have voted on a motion, I will explain the procedure. In a moment, I shall put the question on the First Minister's motion. I will ask, first, whether we all agree to the question. Members should shout no at that point if they disagree to it. If there is no disagreement, the question is agreed to. If any member registers disagreement, we will move to an electronic vote.

Motion agreed to.

That this Parliament agrees that it be recommended to Her Majesty that The Right Honourable The Lord Hardie QC be appointed as the Lord Advocate and that Colin Boyd QC be appointed as Solicitor General for Scotland.

In view of the fact that the two gentlemen will become members of the Parliament, I believe that members will think it right that I should invite them to walk in and be recognised. I will congratulate them on their appointment—if they are here. [MEMBERS: "Yes, they are here."] I trust that they will be more timely in the courts.

They are coming. [Applause.]

Send them down! [Laughter.]