HC Deb 10 February 1998 vol 306 cc160-85

4.31 Pm

Mr. Michael Ancram (Devizes)

I beg to move amendment No. 303, in page 18, leave out lines 7 and 8 and insert— '(1A) Any devolved Law Officer shall not be a member of the Scottish Executive'.

The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)

With this, it will be convenient to discuss the following amendments: No. 274, in page 18, line 10, at end add— '(3) The Solicitor General for Scotland shall be the law officer to the Scottish Executive'. No. 10, in clause 45, page 19, line 24, at end insert— '(1A) The Lord Advocate and Solicitor General for Scotland shall be qualified as either

  1. (i) an advocate, or
  2. (ii) a solicitor under the Solicitors (Scotland) Act 1980.'.
No. 314, in page 19, line 25, after 'Advocate', insert `or by an official or agent appointed by and responsible to him'. Clause 45 stand part.

Government amendment No. 321.

No. 289, in clause 59, page 25, line 6, after `Ministers', insert `or the Scottish Law Officers'. No. 290, in page 25, line 9, after 'Ministers', insert `or the Scottish Law Officers'. No. 11, in clause 82, page 37, line 40, at end insert— '(1A) The Advocate General for Scotland shall be qualified as either

  1. (i) an advocate, or
  2. (ii) a solicitor under the Solicitors (Scotland) Act 1980.'.
No. 12, in page 38, line 5, after 'writing', add ',provided that the office shall not be vacant for a period of more than one month.'.

Mr. Ancram

Amendment No. 303 is an important amendment which we are debating with several other amendments. Amendments Nos. 289 and 290 do not relate to the main purpose of my argument and I shall deal with them briefly by saying that they seek to ensure that provision for the transfer of functions, which we shall debate later in Committee, should apply to the Law Officers as much as to other Ministers of the Scottish Executive if the other amendments in my name fail. That would make sense in those circumstances.

Mr. Tam Dalyell (Linlithgow)

The right hon. Gentleman mentioned Ministers of the Scottish Executive. Does he include junior Ministers, because there is some confusion over whether they are included in the term "Ministers of the Scottish Executive"? That may be a pedantic point, but it arises from the Bill.

Mr. Ancram

It is a good point and it will be relevant when we consider the functions of Ministers in other groups of amendments that we will discuss later today. The hon. Gentleman will have gathered from our amendments that we think that it is highly questionable whether there should be a plethora of Ministers in Scotland to do the job that is now being done by the Secretary of State for Scotland, two Ministers of State and three junior colleagues. However, I do not wish to steal the thunder of my hon. Friend the Member for Woodspring (Dr. Fox), who will move those amendments in due course. I merely wished to take amendments Nos. 289 and 290 out of the argument that I am making now, because it is right to concentrate on the matter in hand.

Amendments Nos. 303 and 274 would mean that neither the Lord Advocate nor the Solicitor-General would be members of the Scottish Executive, and also that only the Solicitor General would be a Law Officer to the Executive. This is a matter of substantial importance to us. It has a legal aspect as well as a constitutional aspect, and it is important that we consider it carefully.

In paragraph 4.8, the White Paper "Scotland's Parliament" accepted that there was something different about Law Officers and the Lord Advocate in particular, and said: The traditional independence of the Lord Advocate as public prosecutor will be maintained. That independence really causes us concern in relation to the amendments before us and the Bill as it stands.

The amendments seek to do two things. The first is to try to achieve a situation where the Law Officers are not part of the Scottish Executive. We believe especially that it is wrong in principle to devolve the office of Lord Advocate, because he is, as the White Paper says, an independent public prosecutor, and as such he must act at all times in the public interest of the whole United Kingdom, not the Scottish public interest alone.

It is important to realise that the Lord Advocate, in whatever guise, will continue to be responsible for the prosecution of offences enacted by both Parliaments. Many crimes—such as those involving drugs, firearms and Customs and Excise matters—will be reserved matters on which the Lord Advocate will prosecute, and do not fall solely within the matters that will be in the control of the Scottish Parliament.

Therefore, we believe that the role that the Lord Advocate will perform, having a United Kingdom dimension, is not recognised in the legislation as it stands and, indeed, would be precluded by clause 41(1)(c), which we seek to remove from the Bill, which states that the Scottish Executive shall also have as its members the Lord Advocate and the Solicitor General for Scotland. Interestingly, in 1978, the importance of the United Kingdom dimension was recognised, and the position of Lord Advocate was not devolved for very much those reasons. I know that the hon. Member for Linlithgow (Mr. Dalyell) remembers some of the debates that took place at that time.

It may be useful to illustrate the point with hypothetical examples. There could be a case where a Westminster Member of Parliament from a Scottish constituency was to be prosecuted for electoral improprieties after devolution. [Interruption.] The Minister for Home Affairs and Devolution, Scottish Office smiles and laughs, as though he believes that it could never happen. I suspect that he might like to reconsider whether he is wise to so mock that example.

Let us say that a procedural blunder occurs, the prosecution founders and the Member of Parliament is acquitted on a technicality. In those circumstances, no Member of Parliament or peer at Westminster would be able to call any Minister to account for that, although it would affect the membership of the House, because there remains no ministerial responsibility at Westminster for the Scottish prosecution service. We need to think very carefully about that.

We might also consider the case of the Lockerbie bombing. The United Kingdom public interest would loom large in any prosecution that might take place in Scotland. If the case were ever to come to trial, evidence would be given by members of United Kingdom agencies such as the intelligence services and the forensic science services. I pose the question to the Minister: would it not be wrong in principle for a situation to be created whereby no accountability would be reserved to Westminster for the conduct of what might be one of the most prominent trials of all time?

Mr. Dalyell

The Minister for Home Affairs and Devolution, Scottish Office knows—because he had to answer one of them—that I have initiated 14 Adjournment debates on Lockerbie. This is a very difficult hybrid question, and I hope that, when the Minister speaks, he will cast some reflection, in the light of his experience of answering one of the debates on Lockerbie, on how the problem is to be resolved. It is a very real one.

Mr. Ancram

I am grateful to the hon. Gentleman because it is a good example, which he calls a hybrid situation. Such a situation could occur in other eventualities and, with all respect to the Minister, I do not think that the Bill covers these points sufficiently, so I hope that he will consider our amendments carefully.

The reverse situation might occur also. Let us take the hypothetical case of an English citizen charged with putting drugs on board a train in London that is bound for Glasgow as part of a drugs cartel to supply drugs to Scotland. The Englishman could be arrested by the Scottish police and prosecuted in Scotland although he might, in the commission of the crime, never have set foot in Scotland. Those of us who have practised at the criminal Bar know that such situations can arise. His Member of Parliament, who would be an English Member of Parliament, would have no opportunity to question in the United Kingdom Parliament the Minister with responsibility for the case in which his constituent was involved. Once again, lack of accountability could create great unfairness in terms of the representation available to citizens. I shall give way to the hon. Lady.

Dr. Lynda Clark (Edinburgh, Pentlands)

I would have more sympathy with the right hon. Gentleman's argument if he could say when the Lord Advocate was last a Member of the House of Commons.

Mr. Ancram

At present, no Law Officer answers for the Scottish Law Officers in this place. However, during my time in government, the Solicitor-General for Scotland was a Member of the House of Commons. Lord Fraser of Carmyllie was Solicitor-General in this place before he became Lord Advocate. Law Officer questions were separate from questions to the Scottish Office, which underlines the importance of making that distinction. I give way again to the hon. and learned Lady—I apologise for not remembering her full title.

Dr. Clark

I am much obliged. It may be a figment of my imagination, but I think that a Law Officer was last a Member of the House of Commons in 1983.

Mr. Ancram

I think that it was 1987. The hon. and learned Lady makes an important point. When considering our amendments to the Bill, we pondered whether it was right to insist that Law Officers be Members of the Scottish Parliament for those reasons. However, we resisted putting down such an amendment, as we thought that it might preclude those who might hold that office with distinction from being able to do so.

Mr. Alex Salmond (Banff and Buchan)

In the 10 years between 1987 and 1997 when the Solicitor-General was not a Member of the House of Commons, did the right hon. Gentleman make any representations to his party or argue in this place that that was an unacceptable situation that should be changed?

Mr. Ancram

I think that the hon. Gentleman misses my point. There was an acceptance that the Lord Advocate had a United Kingdom role. This part of the Bill categorises the Lord Advocate as a member of the Scottish Executive, who is therefore responsible within that Executive and not on a wider basis. I am making a serious point. If we are not careful, we shall create a situation whereby the necessary role of the Lord Advocate in terms of United Kingdom prosecutions could be compromised by the fact that he is a member of the Scottish Executive. I am surprised that hon. Members have difficulty with that. I believe that it is part of the tradition of the office of Lord Advocate that it should not only relate to Scotland, but have a wider perspective, which is important to Scottish law as well as to the office of Lord Advocate.

Ms Roseanna Cunningham (Perth)

The last time that we debated the matter in this place, we had a long and heated discussion about clause 23. In the debate, it became quite clear that we could require anyone to appear before Parliament and give evidence. That did not necessarily please several hon. Members, but it was stated that that would continue to be the case. Does that not cover the point about which the right hon. Gentleman has expressed concern?

Mr. Ancram

With respect, I do not think that it covers the point—otherwise I would not have moved the amendment. We must ensure that the independence of the Lord Advocate is sustained as far as possible. I must concede that the Bill tries to do that; many clauses in the Bill seek to achieve that aim, but I do not think that there are enough.

The Lord Advocate's ability to act in a role that is beyond the powers that will not be reserved to this Parliament and therefore available to a Scottish Parliament is a second important point. There is a third key point to which I shall turn in a moment. However, I do not think that the Bill, as it stands, resolves the question.

The Opposition question the need to have two Law Officers in the Scottish Parliament—whether they are members of the Executive or not. Therefore, our amendment seeks to ensure that the office of the Lord Advocate is not devolved, which would allow him to retain a wider role. The Solicitor-General for Scotland could be devolved and made answerable to the Scottish Parliament, which would have the added advantage of eliminating the so-called "Harry Lime" position, whereby a third man is suddenly introduced by the Bill.

that third Law Officer would be a new animal—no one is quite certain what the Advocate General for Scotland will do. I believe that the simple procedure whereby the Lord Advocate is answerable to the United Kingdom Parliament and the Solicitor-General is answerable to the Scottish Parliament would resolve the issue without getting into the technicalities of creating a new position.

Mr. James Wallace (Orkney and Shetland)

Does the right hon. Gentleman not see a difficulty with the proposal, in that, if a Member of the Scottish Parliament wished to raise a question about a Scottish prosecution, he would not be able to tackle the person who was ultimately responsible—the Lord Advocate? The buck would stop with the Lord Advocate who would not be answerable to the Scottish Parliament regarding the overwhelming number of prosecutions compared with the one or two hypothetical exceptions that the right hon. Gentleman has suggested.

4.45 pm
Mr. Ancram

I appreciate that it would be nice for the Scottish Parliament to be able to call to account the person who is in charge of all prosecutions. However, it could call to account the Solicitor-General—that is nothing new. The hon. and learned Gentleman was a Member of Parliament when the Solicitor-General for Scotland used to sit in this place. I do not think that we argued then that that was second best. I make the point with some seriousness, as I know that it concerns members of the legal profession in Scotland. The matter was considered carefully in 1978, and the then Labour Government decided not to go down that path.

Another effect of the amendment is to ensure something rather different: the devolved Law Officers will remain distinct from the Scottish Executive. That is not clear in clause 41(1)(c), which states that they would be members of that Executive. We are trying to create a situation that mirrors the current position, whereby the Crown Office and the Scottish Office are strictly separate entities—and are so described in any Government lists. They are not in the Cabinet and they are not Ministers outside the Cabinet; they are always declared separately. That is right and proper. This position is significant.

Clause 48(3) of the Bill states: Statutory functions of the Scottish Ministers shall be exercisable by any member"— I stress that point— of the Scottish Executive. If the Bill is left unamended, Scottish Law Officers will be included in the definition of Scottish Ministers. If Law Officers could exercise the functions of other Ministers—according to my reading of the Bill, it could not happen the other way around—it would create an extraordinary anomaly that could lead to conflicts of interest. On my reading of the Bill—I shall be interested to hear the Minister's comments—the Lord Advocate could grant planning permission, because that is a function of a member of the Executive. Therefore, the Lord Advocate would not be precluded from doing that.

Through these amendments, we are trying to protect the position of Lord Advocate, which is not only historic, but extremely valuable in terms of the constitution of this country and the Scottish legal system. We believe that it is not sufficiently protected at present, either in terms of independence or in terms of distinction from the Executive. On that basis, we hope that the Government will consider our arguments seriously.

Mr. Dalyell

Hon. Members have been asked to be succinct, so I shall limit my speech to two points. First, clause 41 defines the Scottish Executive. It is a matter of some importance to return to the question of junior Scottish Office Ministers. Will they be construed as being members of the Scottish Executive? What is their status? I do not think that the Bill makes that clear.

Secondly, the right hon. Member for Devizes (Mr. Ancram) raised the example of Lockerbie. Surely it is where the criminal act has its effect that the courts and prosecution system would have jurisdiction. If that is a correct understanding of the Scottish Parliament's responsibility for a hybrid situation such as that, I should be grateful if it could be confirmed.

Mr. Wallace

Before I speak to the amendments tabled by my hon. Friends and me, may I respond to some of the comments of the right hon. Member for Devizes (Mr. Ancram), who tried to address the issues and made some reasonable points.

I pointed out in an intervention that the overwhelming majority—99 per cent. or more—of cases in respect of which the Lord Advocate will ultimately have the responsibility for bringing the prosecution will be matters that affect the constituents of those who will be in the Scottish Parliament. The right hon. Gentleman's reply was that, for a long time, we accepted a Solicitor-General coming to the House and answering questions, and that did not work too badly. Let us be honest: it was better than nothing, and nothing is what we have had since 1987.

Although the right hon. Gentleman was not in Parliament at the time, it was a Conservative Government who took away the 10 or 15 minutes allocated at Question Time to the Law Officers' responsibilities. Several of us raised the matter on several occasions, and the balance was only latterly redressed in a small way by the provision that allowed the Lord Advocate, because he happens to be a Member of another place, to appear before the Scottish Grand Committee. As I understand it, that is done only with his permission, because he is a Member of another place.

In the case of the Scottish Parliament, the amendment that the Conservatives considered but decided not to table is not necessary, because under clause 26, if the Lord Advocate or the Solicitor-General is not a Member of the Parliament, he may still participate in the proceedings of the Parliament to the extent permitted by the Standing Orders. It will not be a question of whether the Lord Advocate deigns to appear; the standing orders will make the Law Officers part and parcel of the proceedings.

Moreover, I understand that, in Standing Committees of this House, it is possible to require a Law Officer to be present, not necessarily when the Committee is dealing with criminal matters, but when advice on points of law on other matters is needed. That has not been possible in Scottish legislation since 1987, when Mr. Peter Fraser—now Lord Fraser—lost his seat. There has been no Scottish Law Officer in the House of Commons. The scheme for which the Bill provides offers considerable advantages.

The right hon. Gentleman makes a fair and valid point—which those of us who have been brought up and trained in the Scottish legal tradition readily recognise and support—about the rigorous independence of the Lord Advocate when he fulfils his duties as the person who prosecutes in the Queen's name in Scotland. Specific provision is made for that in the Bill, which states: Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person. That is set out in statutory form, and I support it.

Amendment No. 314 expands that and makes it clear that any official or agent appointed by and responsible to the Lord Advocate—in the Crown Office, advocate-deputes and procurators fiscal—will also have that independence guaranteed to them by the provisions of the Bill. The Minister may respond that that is already implied. The Government have not been over-generous in accepting amendments. Perhaps they will accept this one, which sets out the position. It would guarantee that independence and put it on a statutory basis and beyond question at any future date.

The Lord Advocate must be answerable to the Scottish Parliament, and he would not be answerable if he remained a Member of this place or the other place and a member of the United Kingdom Government.

Let us forget all the fancy stuff about the Law Officers being totally independent. Although they are independent, and rightly so, and any Lord Advocate whom I have known has jealously guarded his independence with regard to the prosecution, nevertheless they have not been above partisanship in their other activities, and I make no complaint about that. They are there to help the Government to implement their policies and to give legal advice, and one would expect that they would generally be in step with the Government; but the idea that recent Lords Advocate have been above the political battle does not stand up. I do not criticise them for that. They have made no secret of it in some cases, and it is part of their job.

If the Law Officers did not sit in the Scottish Parliament—if they were the creatures of Westminster—the Solicitor-General could answer questions, but there would be no right of the Scottish Parliament to question the Lord Advocate. Although there has been no Law Officer in the House of Commons, the Law Officers are still ultimately responsible to the House of Commons and to another place. Technically, the Secretary of State answers questions on their behalf.

As the hon. Member for Linlithgow (Mr. Dalyell) knows, if we had a Law Officer in this place, some of his Adjournment debates on Lockerbie would have been answered by a Law Officer, but they have had to be answered by a Minister—indeed, the Minister for Home Affairs and Devolution, Scottish Office has had to answer them—as a stand-in for the Law Officers. That would not be the case if the Lord Advocate was not a Member of the Scottish Parliament.

The hon. Member for Perth (Ms Cunningham) rightly pointed out in the battles that we had over clause 23 that it would be possible for the House of Commons to call the Lord Advocate or the Solicitor-General if it was felt that he was not executing his duties or there were questions to be answered.

Amendment No. 10 would require that the Lord Advocate and the Solicitor-General should be members of the Faculty of Advocates or a solicitor under the Solicitors (Scotland) Act 1980. That would ensure that those who hold such high office were suitably qualified.

I am grateful to Mr. Michael Clancy of the Law Society of Scotland for giving me some of the historical background. The Lord Advocate has always been an advocate, as far back as anyone can trace. With regard to the Solicitor-General, the first appointment of a King's Solicitor dates to 1587, when a commission was granted to William McCartney, one of the King's Clerks, writer and special agent". That might suggest that he was a solicitor rather than an advocate, but during the 17th century the office became the preserve of members of the Faculty of Advocates. In 1684 the King's Solicitor was authorised to prosecute with similar jurisdiction to that of the King's Advocate.

In more recent times, during the first Labour Government, the Prime Minister, Mr. Ramsay MacDonald, attempted to have a Glasgow solicitor, Rosslyn Mitchell, appointed Lord Advocate, but after an encounter with the Lord President of the Court of Session, Ramsay MacDonald thought again and Mr. Mitchell was not appointed, as he had no rights of audience in the Court of Session.

The position has been different since the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Mr. Dalyell

If the Mitchell case, to which the hon. and learned Gentleman rightly refers, were repeated today, would he agree to a solicitor of the distinction of Rosslyn Mitchell being appointed? Personally, I would.

Mr. Wallace

Subject to what I am about to say, yes. My amendment would make provision for a solicitor to become Lord Advocate or Solicitor-General for Scotland—a solicitor under the Solicitors (Scotland) Act 1980. Of course it is now possible for solicitors to have rights of audience in the High Court, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council.

I hope that the Minister will be minded to accept the amendment, which would build in a guarantee that whoever holds those high offices will be suitably legally qualified.

Amendment No. 11 contains a similar requirement in relation to the Advocate General for Scotland and clause 82. It is perhaps even more important that the qualification be included here. One wonders whether, in times to come, a short cut might be taken and it might be thought a good idea to let the Attorney-General for England and Wales also be the Advocate General for Scotland.

5 pm

Clause 82(3) states: If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine in writing. That suggests that someone, somewhere along the line, has thought that the Advocate General's functions might be carried out by, for example, the Lord Chancellor's Department, or possibly the Secretary of State for Trade and Industry. The field is wide open.

Amendment No. 12 would allow the vacancy to exist for only one month. Important Scottish legal considerations would come to bear on matters which are still the reserved powers of Westminster. It is important that advice on the Scottish dimension is given by someone suitably qualified in Scots law.

Mr. Ancram

As a Scottish lawyer, I have some sympathy with the idea of creating more jobs for Scottish lawyers. But does not the hon. Gentleman's point on the Advocate General substantiate something that I was trying to say, which is that the safest form of Advocate General within the United Kingdom is the Lord Advocate? It is clear that he is qualified as a Scottish lawyer but can also bring to that role the influence and weight of the office. To create this new third man, Harry Lime-type creature will not do anything for the law of Scotland or the advice given to the Government here.

Mr. Wallace

I do not agree, because one cannot serve two masters. As I have already said, we are not talking about the prosecution function, which I think we are all agreed should be separate. If one had a Government of a particular complexion in Edinburgh and one of a different complexion in London, one could not honestly expect the Lord Advocate to deliver legal advice to both. The right hon. Gentleman says that that problem would not arise because the Lord Advocate would not be involved in the Scottish Parliament, and I have given the reasons why that would not be appropriate.

It is important to have someone available in Westminster to give advice on Scottish legal matters and, by the very character of the being, it must be someone in step and in political sympathy with the Government of the day.

Mr. Andrew Rowe (Faversham and Mid-Kent)

As a non-Scottish lawyer, I seek a piece of information. If a constituent of mine from Kent crosses the border into Scotland and falls foul of the procurator fiscal service in circumstances that I regard as oppressive and improper, with whom can I take up my anxieties?

Mr. Wallace

It would not be the Advocate General, because he would not have responsibility. The practical answer is that the hon. Gentleman could take the matter up with the Lord Advocate. I would fully expect the Lord Advocate of the day to treat seriously any such letter from an hon. Member of this House. We write to European Commissioners who are not answerable to us, but we expect and hope to have our letters treated seriously, which, for the most part, we do.

In terms of theoretical accountability, as I have already said, at the end of the day, because of the clause that we have already debated, it would be possible for the Lord Advocate to appear before a Select Committee of this House and, in that way, there may be some indirect accountability. The practical point is that, if the hon. Gentleman had an aggrieved constituent, he would take it up with the Lord Advocate and I would fully expect any Lord Advocate worth his or her salt to give a decent and considered reply, in the same way as a Member of the Scottish Parliament would get such a reply if he wrote. In practical terms, that is not a problem.

The balance struck by the Government of the two Law Officers being part of the Scottish Parliament and the Scottish Executive shows the seriousness of our intent with regard to the creation of the Parliament. If, somehow or other, the Lord Advocate were thought to be too grand a person for the Scottish Parliament, it might lead to questions as to what kind of Parliament we are creating in the first place. The Government have struck the right balance, but my amendments would secure the position and the independence of the procurator fiscal service and the advocate-deputes in terms of prosecution.

Mr. Salmond

I can help with the reason why the right hon. Member for Devizes (Mr. Ancram) keeps referring to the third man and Harry Lime. As I remember the plot of the film, Orson Welles kept disappearing down the drains of Vienna. Given the state of the Tory party, that seems an apt analogy.

I come now to the humbug behind the right hon. Gentleman's formulation. The current system of Law Officers' accountability to this place is clearly unsatisfactory. The hon. Member for Linlithgow (Mr. Dalyell) made the point. His 14 Adjournment debates had all been answered by proxy because it is 10 years since a Law Officer sat in this place who could answer the hon. Gentleman directly. Perhaps it was because the Law Officers were facing the hon. Gentleman that they decided no longer to be in this place, but that is an unsatisfactory position that the right hon. Member for Devizes was perfectly happy to allow for 10 years.

Clearly, under the Bill, Members of the Scottish Parliament will be able to make the Law Officer directly accountable by questioning, by proper democratic process. That must be an enhancement of the current position. It may be an incentive for the hon. Member for Linlithgow to stand for the Scottish Parliament so that he can pursue the Lockerbie debate directly with the Solicitor-General and the Lord Advocate—who knows? But whoever does it, whether it be the hon. Member for Linlithgow or his Scottish National party replacement, the provision will enhance the democratic process.

The right hon. Member for Devizes is perfectly happy in his amendments to remove the Lord Advocate from the provenance of the Scottish Parliament so that the senior Law Officer in Parliament will not be available directly to the Members of the Scottish Parliament, despite the fact that the vast majority of the issues will fall under the matters devolved to that Parliament. In place of that, he brings forward a few exceptions in terms of the reserved matters.

In one of our debates two weeks ago, it became clear that, against my wishes and those of many other hon. Members, it would not be within the ability of the Scottish Parliament to summon UK Ministers. It could invite UK Ministers in much the same way as we can invite the Lord Advocate to the Scottish Grand Committee at the moment. But it would still be within the rights of this Parliament's Select Committees to summon Scottish Ministers before them, as they summon other people, if so required.

The Opposition—in their amendments and in the position celebrated by Conservative Members when they congratulated the Government on the question of witnesses only two weeks ago—are perfectly happy to allow a democratic vacuum, whereby the senior Law Officer is not available to Members of the Scottish Parliament for questioning, in pursuit of a few isolated cases in which they think Westminster's responsibility should prevail. It is that attitude of trying to limit the Scottish Parliament's powers—

Mr. Ancram

If the Lord Advocate, although still remaining the adviser to the United Kingdom Government, could give answers to the Scottish Parliament, would the hon. Gentleman withdraw his objection?

Mr. Salmond

Of course not. I argue that the Law Officer should be directly accountable to the Scottish Parliament. It is the right hon. Gentleman who has to account for the situation that he is prepared to allow which would mean that the Scottish Parliament did not have the ability to hold the senior Law Officer in Scotland directly accountable. That attitude towards the legislation—trying to draw back whatever can be saved for this place and the other place at Westminster—is the real reason for the miserable, down the drain, 9 per cent. that the Conservative party faces in the elections to the Scottish Parliament in a year's time.

The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish)

I wish to start by referring to the initial comments of my hon. Friend the Member for Linlithgow (Mr. Dalyell) on the many Adjournment debates he has had on Lockerbie. As a newly appointed Minister about to face the 14th debate, I sat with some trepidation. As it was an Adjournment debate, however, I thought that I could relax until 10 o'clock. This historic moment was the evening before the publication of the White Paper and, at 6.10 pm, the business in the House collapsed.

My hon. Friend was on stage at that point. Remarkably, after an hour, he started to read from his notes—after speaking for one hour without any. We finished at 8.50 pm, and it was an important occasion for me in dealing with Lockerbie. My hon. Friend answered the question on prosecution—it is about the jurisdiction in which prosecution takes place. I shall deal with some of the points made about the Lord Advocate in a moment, but that is an important point.

We have had a useful debate on the role of the Law Officers and the way in which they will be dealt with under devolution. Before dealing in detail with the amendments. It may help if I clarify first what is proposed for the Law Officers in the Bill.

The policy that the Bill reflects was summarised briefly in the White Paper, which recognised that the Scottish Executive would require the services of Law Officers to provide them with advice on legal matters and to represent their interests in the courts. In addition, the role and responsibilities of the Lord Advocate as prosecutor were to be devolved, with his traditional independence maintained. The Bill delivers that policy and safeguards the Lord Advocate's independence in a number of its provisions.

At present, the Lord Advocate and the Solicitor-General for Scotland are the Scottish Law Officers to the United Kingdom Government. The Bill provides for them to cease to be members of the UK Government and to become members of the Scottish Executive. They, along with the other Ministers, will be known as the Scottish Ministers. The effect of clause 45(3) is that the Lord Advocate and the Solicitor-General will cease to be Ministers in the UK Government and will cease to be the UK Government's Scottish Law Officers. Clause 45(1) provides for the appointment and the removal from office of the Law Officers, and makes this subject to the agreement of the Scottish Parliament.

All the functions conferred on the Scottish Ministers will be capable of being exercised by any of them. It will be for the First Minister to determine the portfolios of individual Scottish Ministers. However, the Lord Advocate and the Solicitor-General for Scotland are to be the Law Officers to the Scottish Executive, and the intention of the Bill is that their functions as Law Officers should not be exercisable by any other Scottish Minister—a point alluded to by the right hon. Member for Devizes (Mr. Ancram).

The Bill ensures that these Law Officer functions are retained by the Law Officers in their own names. The functions of the Law Officers principally involve their being the main legal advisers to the Government in matters of Scots law, and representing the Crown and the Government in civil and criminal proceedings. While the term "Law Officer" in itself does not, as a matter of law, confer any particular function or status, certain specific functions are conferred upon the Lord Advocate in his capacity as Law Officer.

Retained functions include the functions of the Lord Advocate as Her Majesty's Advocate—as the head of the systems of criminal prosecution and the investigation of deaths in Scotland. The Lord Advocate will be entrenched in that role by clause 28(2)(e), and clause 45(2) confirms the continued independence of the decisions of the Lord Advocate in his capacity as the head of the systems of criminal prosecution and the investigation of deaths in Scotland. These provisions secure the protection that the Lord Advocate requires to fulfil those responsibilities in a way which will uphold his traditional independence.

All the other functions currently exercisable by the Lord Advocate that do not relate to his Law Officer functions—whether they concern devolved or reserved matters—will require to be transferred from him before he ceases to be a Minister of the Crown or becomes a member of the Scottish Executive. Transfer of function orders will need to be made to effect this and, for the information of the House, I have today laid three working drafts of the orders in the Library.

Mr. Ancram

We understand that, under the Bill, the legal functions of the Law Officers are protected from being exercised by anyone else. However, I am interested in where the reverse could be the case. Under clause 48(3), a Law Officer might find himself exercising the statutory functions of another Minister of the Executive, and I gave planning as an example. Am I right in thinking that, under that provision, that is possible? If it is, does the Minister think that it is desirable?

Mr. McLeish

It would be possible, but it would be ridiculous and certainly would not reflect any precedent in the current distribution of functions within a ministerial team. The right hon. Gentleman once again picks an extreme example on which to base his case. That will not happen. We want to ensure that the ministerial functions are capable of being exercised by Ministers of the Executive. There is nothing surprising about that, and it is a reasonable step forward.

Mr. Ancram

If the Minister is right to say that that position will never arise, and that there is no possibility of a Law Officer exercising the functions of another member of the Executive, what is the point of having them as members of the Executive? The purpose of our amendment is not to prevent them from advising the Scottish Parliament, but to remove them from the Executive. We cannot see the purpose or benefit of the Law Officers being members of the Executive, but we can see a lot of dangers in blurring the distinction between their office and the offices of other members of the Executive.

5.15 pm
Mr. McLeish

I do not see the danger. At present, I am the Minister responsible for home affairs, devolution and transport, but there may be occasions within my ministerial work when I am working on health or education matters. It is common sense to allow members of the Executive to carry out these functions.

Mr. Ancram

The Minister has missed the point.

Mr. McLeish

No, I have not. We are suggesting that the Lord Advocate and the Solicitor-General will be Ministers and part of the Scottish Executive. There is nothing remarkable in that proposal, and I hope to explain why it makes so much sense.

I referred to the fact that a draft transfer of functions order had been placed in the Library, and I hope that hon. Members will avail themselves of the opportunity to look at it. There will also be another order to transfer certain functions from the Lord Advocate to a new UK Minister called the Advocate General for Scotland, who will become the Scottish Law Officer to the UK Government. His office is provided for in clause 82.

Before the Lord Advocate becomes a member of the Scottish Executive, certain of his functions that relate to reserved matters will be transferred to the Advocate General by the order. Apart from the functions that the Lord Advocate is retaining, the functions he currently exercises in relation to devolved matters will be transferred first to the Secretary of State under one of the transfer orders. They will then be transferred to the Scottish Ministers under clause 49, when they will become exercisable by any of the Scottish Ministers as determined by the First Minister.

The reason why these functions have to be transferred first to the Secretary of State is that they have to be transferred from the Lord Advocate to another UK Minister of the Crown before the two Scottish Law Officers cease to be part of the UK Government. This allows the functions then to be transferred to the Scottish Ministers under clause 49. Functions currently exercisable by the Lord Advocate in relation to reserved matters will be transferred by the draft orders to UK Ministers of the Crown. Most will subsequently be transferred to the Scottish Ministers by the draft Transfer of Functions (Scottish Ministers) Order, which will be made under clause 59. I have made available to the House a draft of that order.

In light of that background, I wish to address myself to the amendments. Amendments Nos. 10 and 11 would require the Law Officers to the Scottish Executive—the Lord Advocate and the Solicitor-General for Scotland—and the new Scottish Law Officer to the UK Government, the Advocate General for Scotland, to be legally qualified in Scotland, either as an advocate or as a solicitor.

As the hon. and learned Member for Orkney and Shetland (Mr. Wallace) will be aware, the offices of Lord Advocate and Solicitor-General are, by custom, held by distinguished members of the Scottish Bar. 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 this should be 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 these vital offices of state are qualified for them.

Some reference was made to the history of the offices. I referred to the holders of the offices as being distinguished members of the Scottish Bar. That has been the case for the Lord Advocate's office for some 400 years and, for the Solicitor-General's office, for some 300 years. Custom has served us well in Scotland, and there is no reason why that should change.

Mr. Wallace

Does the Minister accept that it could be possible for a solicitor, particularly one who holds rights of audience in the Supreme Court, to become Lord Advocate or Solicitor-General? In the case of the Advocate General for Scotland, which is a new appointment, there might be a temptation for the Government to cut corners and double up on a salary, possibly with the Attorney-General. In that case, would it not be worth while spelling out the qualifications required?

Mr. McLeish

The question of the possible appointment of a solicitor to one of those offices is not an appropriate one for the Bill. The advent of rights of audience for solicitors and of solicitor-advocates may well give rise to the question whether it is strictly necessary for the Lord Advocate and Solicitor-General to be drawn only from the Faculty of Advocates. There are a number of interests which it would be appropriate to consult before proceeding with any change on that matter.

In view of the wide range of the Lord Advocate's responsibilities, both formal and informal, it is essential that he or she should command the full confidence of the courts. That may be an issue which, in the fulness of time, the Scottish Parliament will wish to consider, but it is not an appropriate subject for the Bill.

Similar considerations apply to the appointment of Advocate General. Clearly, the UK Government would wish to appoint only an eminent Scottish lawyer to a ministerial office of that nature, but there is no need to specify those qualifications in legislation. This is an area in which we can rely on long-established custom and practice, and I therefore ask the hon. Gentleman to withdraw the amendment.

Amendment No. 12 provides that the functions of the Advocate General may be exercisable by another Minister of the Crown in the event of a vacancy or the incapacity of the Advocate General, provided that a vacancy lasts for no more than a month. The effect is to make it impossible for there to be a vacancy for longer than a month. Although I appreciate that the amendment is intended to ensure that the office of Advocate General for Scotland is not left vacant for too long, the matter can safely be left to the good sense of all concerned, as it might have other consequences.

Clause 82(3) provides for the Prime Minister to determine that another Minister of the Crown should carry out the Advocate General's functions if the office is vacant, or if the Advocate General cannot act, for example, because of illness. I fully accept that it would be in no one's interest for the office to be left vacant for long and, except for circumstances beyond anyone's control, I cannot envisage the office being left vacant for longer than a month.

I cannot agree that it is necessary to prescribe time limits to the provisions in clause 82. In any circumstances in which there was a vacancy or incapacity, whoever was appointed by the Prime Minister to hold the fort would be advised by the Scottish legal experts in the Advocate General's Department. There would be no question, therefore, of the UK Government taking decisions without regard to Scottish law.

Mr. Salmond

May I press the Minister on his opinion on Law Officers' independence? We have had Law Officers who have been anything but politically independent—Lord Mackay of Clashfern kept making interventions in the constitutional debate; each was described as "unprecedented". The last Solicitor-General stood for a seat unsuccessfully in the general election. I am genuinely interested to know what the Minister thinks the question of Law Officers' independence means, because there has been no tradition of political independence.

Mr. McLeish

The hon. Gentleman asks a reasonable question. We should look at the totality of the Lord Advocate's functions and responsibilities in the new Scottish Parliament. He will be a member of the Scottish Executive and would therefore advise on legal aspects of political policy as it unfolds, but in relation to the prosecution function and overseeing investigations into deaths, his independence is absolutely vital. As in any democracy, an important balance must be struck. The proposals before us contain the right balance.

Mr. Dalyell

It may be unlikely, and it would not happen often, but in the event of a difference of opinion between the Advocate General and the Lord Advocate, who would resolve it?

Mr. McLeish

Such points were raised at previous Committee sittings. We assume that the balance of common sense will prevail in many of the issues that will be dealt with between Westminster and the new Parliament at Holyrood. If we reach the point where matters must be resolved, the systems of debate and dialogue must come into play. When we have discussed such matters, we have always considered the most pessimistic scenario. That is understandable, but I would hope that, especially in this area, which is absolutely vital to the freedom of individuals and to the public interest, those matters will be fully resolved.

I am grateful to the right hon. Member for Devizes (Mr. Ancram) for saying why he considers amendment No. 274 to be desirable. The amendment is both unnecessary and, I am afraid to say, would run counter to what is envisaged by the Bill.

As I explained, the Bill provides that the Lord Advocate and the Solicitor-General for Scotland should be members of the Scottish Executive. It does not, however, need to provide expressly that they will become the Law Officers of the Scottish Executive. The Solicitor-General will continue to be able to carry out the functions of the Lord Advocate in terms of the Law Officers Act 1944.

The amendment describes the Solicitor-General as the Law Officer to the Scottish Executive. I am left wondering where the amendment would leave the Lord Advocate. The right hon. Member for Devizes said that Scotland could deal with one Law Officer, not two. The amendment would, by implication, deprive the Lord Advocate of his intended role as principal Law Officer to the Scottish Executive.

The Government believe that both the Lord Advocate and the Solicitor-General should be the Law Officers to the Scottish Executive, and that the two offices should continue to have the sort of relationship that has existed for more than three centuries. The amendment would destroy that.

Mr. Dalyell

May I also ask about the back-up to the Advocate General? Clearly, the civil servants and the Crown agent are responsible to the Lord Advocate and the Solicitor-General, but what about the civil servants responsible to the Advocate General? Will they be UK civil servants, or responsible to the Scottish Parliament?

Mr. McLeish

It is a UK appointment and they will be UK civil servants. The Government will deal in due course with the details and procedures behind setting up the office and the specific functions.

Amendments Nos. 289 and 290 allow the subordinate legislation under which functions may be executively devolved to determine whether the functions should be exercised by the Scottish Law Officers rather than by Scottish Ministers generally. The purpose appears to be to try to allow particular functions to be assigned specifically to the Scottish Law Officers rather than to the Scottish Ministers.

That goes against the general approach in the Bill, which is to make fully and executively devolved functions exercisable by any Scottish Minister. In legal terms, they will be equally capable of exercising those functions. In practice, that will leave the First Minister with the proper degree of discretion to decide which of his Ministers should exercise particular functions. Only in respect of the Lord Advocate's retained functions, which are his Law Officer functions and his functions as head of the systems of prosecution and deaths investigation service, will the Law Officers exercise functions that cannot be exercised by another Scottish Minster.

I expect that the First Minister will wish to allocate functions in accordance with the Scottish Ministers' portfolios. In practice, it is likely that certain policy functions that relate to the Scottish judicial system will be exercised by the Scottish Law Officers.

In line with the devolution of responsibility for the judicial system in Scotland, the draft Executive devolution order lists a number of functions currently exercised by the Lord Advocate and the Secretary of State in relation to tribunals concerned with reserved matters. Those functions involve making or being consulted about appointments, and procedural rules and other procedural matters. Executive devolution will enable the functions to be exercised by the Scottish Minister. We expect the First Minister to allocate the functions in question to the Scottish Minister responsible for civil justice matters, whether he be the Lord Advocate or some other Scottish Minister. In exercising those functions, the role of the relevant Scottish Minister would relate to his involvement in the civil justice system rather than to any other policy interest of the Scottish Executive in the matter concerned.

However, there would be no justification for fettering the discretion of the Scottish Ministers as the amendment proposes. The Committee has to make up its mind whether it wants power and responsibility to be devolved to a Scottish Parliament and a Scottish Executive that can stand on their own feet and be responsible for their own decisions. There is no need for the type of provision proposed in the amendments.

I ask the Committee to resist amendment No. 303, which appears to be intended to prevent the Lord Advocate and the Solicitor-General for Scotland from being members of the Scottish Executive. That would be quite inappropriate. The Lord Advocate and the Solicitor-General will be the Law Officers to the Scottish Executive. That means that they will be expected to provide advice from a legal perspective on the formulation and implementation of policy. They can only properly do that if they are members of the Scottish Executive.

Amendment No. 303 would therefore severely restrict the role of the Law Officers, which I am sure is not what the right hon. Member for Devizes intends. It is vital to the Scottish Executive that the Law Officers should play a full and effective part in it. The devolution of the Law Officers and their responsibilities is one of the key respects in which the Bill improves on the 1978 Act. The amendment would be a significant weakening of the Bill. For those reasons, I ask the right hon. Gentleman to withdraw amendment No. 303.

Amendment No. 314 would extend the provision on the independence of the Lord Advocate to officials and agents appointed by and responsible to the Lord Advocate, such as Crown Office staff, procurators fiscal and Crown counsel.

The amendment is defective because clause 45(2) protects any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. It does not make any sense to refer, as the amendment does, to any decision by such an official or agent taken in that capacity because the official or agent is not the head of those systems. Furthermore, the amendment could be taken to mean that any decision of an official or agent of the Lord Advocate is required to be taken independently of the Lord Advocate.

5.30 pm

The amendment is unnecessary. It presumably seeks to protect any decision for which formal responsibility rests with the Lord Advocate but which in practice is taken by one of his officials for whom he is responsible. Any such decision is regarded as the decision of the Lord Advocate. It is important to underline that point. The reference to the Lord Advocate will therefore include any such official. Accordingly, the guarantee of independence of the Lord Advocate should be sufficient to protect officials from outside pressures without express mention.

I should also point out that clause 28(2)(e), which entrenches the position of Lord Advocate as head of the systems of criminal prosecution and investigation of deaths, will also have the effect of ensuring that any officials and agents who are appointed by the Lord Advocate in connection with those functions will remain answerable to him. That reinforces the guarantee of independence.

In the light of that explanation, I trust that right hon. and hon. Members will agree that the amendment is unnecessary.

Government amendment No. 321 is a drafting amendment that is intended to clarify clause 48(6) by making it clear that what the Bill refers to as the Lord Advocate's "retained functions"—those functions that are exercisable by him alone—include any functions that may be conferred on him alone in future legislation.

It is not intended to refer to any statutory functions that are at present conferred on him because, to the extent that he retains them, they will be caught by the reference in clause 48(6)(a) to any functions exercisable by him immediately before he ceases to be a Minister of the Crown". The amendment refers to any functions that the Scottish Parliament may confer on the Lord Advocate in connection with the criminal prosecution or deaths investigation systems. It is simply a clarificatory point.

Mr. Ancram

A familiar and depressing atmosphere surrounded the Minister's reply. His standpoint is that his legislation is unamendable. I hope that he will consider that point carefully. Several amendments were tabled in good faith, including those of the hon. and learned Member for Orkney and Shetland (Mr. Wallace), yet we were told that they were not necessary. That attitude comes from a mind-set that assumes that legislation is perfect. As a lawyer, I can tell the Minister that, if legislation had ever been perfect, there would not be much work for lawyers. It is because legislation is so often imperfect that many of us manage to earn a living as lawyers.

I was slightly surprised to be lectured about the fact that the Conservative Government did not have a Law Officer in this House.

Mr. McLeish

indicated dissent.

Mr. Ancram

Not necessarily by the Minister, but by others.

It is obvious that the Government do not believe that a Law Officer should sit on the Treasury Bench to deal with legal matters in Scotland. They do not have the excuse that they have no one who is appropriately qualified. The hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) is perfectly qualified to hold that position, but for reasons best known to themselves the Government decided that the Law Officer should speak in the other place. There is a question mark over the sincerity of their view of the importance of having the Lord Advocate in the Scottish Parliament to answer questions, because they have not adopted that position for this House.

The hon. and learned Member for Orkney and Shetland tabled some good amendments that we would have supported, but we were told by the Minister that they were not acceptable. I am now used to the interventions of the right hon. Member for Banff and Buchan (Mr. Salmond). Is he right honourable?

Mr. Salmond


Mr. Ancram

Honourable but not right yet—that clarifies matters.

The hon. Gentleman seems to regard everything that is proposed, certainly by Conservatives, as part of a conspiracy to destroy the Scottish Parliament. I do not think for a moment that he believes that, because he has no interest in making the Scottish Parliament work. He wants it to fail so that we move towards independence. I suspect that he criticises our proposals because he believes that they give the Scottish Parliament a better chance of sustaining itself within a devolved system, which will ensure that it does not go down the slippery slope towards independence.

Mr. Salmond

It is early days, but it seems that my point of view on the Scottish Parliament elections is doing rather better than that of the right hon. Gentleman. Does he not think that, if the Scottish Parliament works, and if people have confidence in that new institution, it will lead to a move towards independence?

Mr. Ancram

The hon. Gentleman wants conflict and dispute between this House and a Scottish Parliament, because he believes that that will operate in favour of his ambitions and objectives. Throughout the referendum campaign, we argued that the creation of a Scottish Parliament would not diminish nationalism but would create a focus for it, and that nationalism would increase. If anything, the opinion polls show that our fears were right. The urbane reassurances that we were given by Labour Members are now seen for what they are.

The Minister gave us some interesting information about the clause. I thank him for that, because we learned much about the intentions behind the clause. However, he did not answer our questions on the amendments. On one amendment, he said that the matter could safely be left to the good sense of all concerned. It is not an answer to say that a provision need not be in the legislation because we can rely on the good sense of all concerned. I do not share his touching faith in human nature. People who want the Scottish Parliament to work would be wise not to rely on faith in human nature: they should ensure that the right statutory provisions are in place.

The Minister gave no reason why the Law Officers should be members of the Executive. He said that it was so that they could give legal advice on political events as they unfolded. Why can they not do that from outside the Executive, as do other legal advisers? They do not have to be part of what they are legally advising: in fact, their advice is often better for their not being part of it.

The hon. Member for Linlithgow (Mr. Dalyell) made two important points about the Advocate General. He asked what would happen if there were a dispute between the Lord Advocate and the Advocate General. We received a wittering answer that did not tell us whether there was a mechanism to resolve such a dispute, which would be very serious for the law of Scotland.

in answer to the question who would service the Advocate General's Department, we were told that civil servants would be made available. Where will they come from? The Crown Office? Will they be trained in Scottish law? Will they be seconded from among the civil servants who would otherwise look after the Lord Advocate and the Solicitor-General? We have no answers to those questions. Yet again, we are told that we must leave it to the good sense of all concerned. We are not prepared to leave such matters to the good sense of all concerned. I ask my colleagues to support my amendment.

Mr. Dalyell

To whom will the civil servants who work for the Advocate General be responsible? Are they part of the home civil service and ultimately responsible to its head, who is currently Sir Richard Wilson, or to the permanent secretary at the Lord Chancellor's Department, or will they be responsible to the Scottish Parliament? That is an important question. Before we reach the later stages of the Bill, something more must be said about the possibility of a difference of opinion between the Advocate General and the Lord Advocate, because such a dispute is not so arcane, esoteric or hypothetical as we may suppose.

Mr. Wallace

I want to take up some of the points raised by the Minister in response to amendments that I tabled. First, however, let me take up what the right hon. Member for Devizes (Mr. Ancram) said when he was engaging in his bit of banter with the hon. Member for Banff and Buchan (Mr. Salmond).

I think that there will be a penalty to be paid by any party that tries to wreck the Scottish Parliament, and I do not think that it is in any party's interest to do so. That is why I want the Scottish Parliament to be as fully fledged as possible. I think that a measure that took away a wing of it by refusing to allow the principal Law Officer of Scotland to be accountable to, or to be a Member of, the Scottish Parliament would give rise to conflict and frustration. I am not saying that that was the motive behind amendment No. 303, but I believe that it could be the consequence of it. If the right hon. Member for Devizes wants to know how the wrecking would happen, let me tell him that I think it would result from not having the Lord Advocate as a Minister in any Scottish Executive.

I was disappointed by the Minister's reply, which was traditionally conservative with a small "c": "It has happened for years, and therefore it will go on happening." I take the Minister's point that we do not want to circumscribe the Scottish Parliament in too many ways, but he ought to accept that, far from circumscribing the Parliament by tradition—which, I think, is what he was trying to do—my amendments would open it up, making the pool from which the Lord Advocate and Solicitor-General might be chosen somewhat wider than tradition would allow it to be. I do not intend to press the matter to the vote on this occasion, but I think that what was said will be noted.

I want to reserve our position on amendment No. 11, which relates to clause 82 and requires the Advocate General to be properly qualified in the law of Scotland. The right hon. Member for Devizes referred to the "good sense" of all concerned. When the Conservatives were in government, I used to apply what I have always considered to be a very good test: "How would you like the powers to be in the hands of the Opposition?" Does the Minister really think that the good sense of all concerned would necessarily be exercised in the right way if, as may happen, the Conservatives returned to office? After all, they have been in office before, and they may be again. Does the Minister trust the Conservatives to exercise good sense, or does he think that they may try to take a short cut?

In the case of the Advocate General, I do not think that we can rely on centuries of tradition, because there is no tradition. We are creating a new post. It will be an important post, because large areas of responsibility affecting Scotland will remain with the House of Commons, and we hope that the advice on Scottish law that the Government of the day are given will be of the best quality. I do not think that we can leave the matter to chance, good sense, good luck and good will.

Especially with regard to the Advocate General, we should not leave things to tradition. There is an old story about someone saying, "As from tomorrow, this college will have a new tradition." I think that the Minister was saying, "As from the time when the Bill is enacted and a Scottish Parliament is established, there will be the tradition of the Advocate General."

Mr. Nick Hawkins (Surrey Heath)

The hon. Gentleman speaks of changes in traditions. Is he aware that recently, when it came to breaking traditions in regard to legal matters, the Government decided to introduce special legislation so that, for the first time, a non-lawyer could become permanent secretary to the Lord Chancellor's Department? Is it not consistent with the hon. Gentleman's argument, rather than with the Government's argument, that in certain circumstances— when it suits them—the Government are prepared to depart from legal tradition, while on this occasion they are not?

Mr. Wallace

I was not aware of that. I have not been paying close attention to the machinations of the Lord Chancellor's Department. Perhaps I have read more in the press about the Lord Chancellor's wallpaper than about his permanent secretary. The hon. Gentleman makes a good point, however: traditions can be overturned. One of my amendments would allow for the development of a tradition, but in the context that we are discussing there is no tradition, and I think that there ought to be rules. As I have said, we shall reserve our position in respect of clause 82.

5.45 pm
Mr. McLeish

I find it remarkable that the right hon. Member for Devizes (Mr. Ancram) is always so keen to reinvent the wheel. At present, the Lord Advocate is a member of the Government, and I submit that in past Conservative Administrations the position was probably the same. What is the great remarkable discovery about the Lord Advocate in the Scottish Parliament being a member of the Scottish Executive? I think that the point is bogus. We are seeking to strengthen the legal advice on policy within the Scottish Executive, while ensuring that the independence that the Lord Advocate requires to exercise his function is there in a real sense. We have presented a clear and coherent package in terms of that accountability, which should be commended.

My hon. Friend the Member for Linlithgow (Mr. Dalyell) referred to the discussions between the Advocate General and the Lord Advocate. As I have said, Labour Members feel no malice in regard to what may happen between a Scottish Parliament and the Westminster Parliament. That said, two parts of the Bill refer to policy resolution and the question of vires. My hon. Friend was right to stress the fact that, ultimately, there will be ways of resolving disputes, and one way will be through the courts.

My hon. Friend asked about the Advocate General's staff. They will of course be United Kingdom civil servants, responsible to the Advocate General at Westminster rather than to the Scottish Parliament.

The practical strength of our proposals lies in the attempt to provide a coherent package for the Lord Advocate and the Solicitor-General. I take on board my hon. Friend's comments, because he has taken a passionate interest in ensuring that we get the balance right, but we believe that the right balance has been struck. I therefore urge the right hon. Member for Devizes to withdraw his amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 138, Noes 352.

Division No. 159] [5.46 pm
Ainsworth, Peter (E Surrey) Bercow, John
Amess, David Beresford, Sir Paul
Ancram, Rt Hon Michael Blunt, Crispin
Arbuthnot, James Body, Sir Richard
Atkinson, David (Bour'mth E) Boswell, Tim
Atkinson, Peter (Hexham) Bottomley, Peter (Worthing W)
Baldry, Tony Bottomley, Rt Hon Mrs Virginia
Brady, Graham Lewis, Dr Julian (New Forest E)
Brazier, Julian Lidington, David
Brooke, Rt Hon Peter Lilley, Rt Hon Peter
Browning, Mrs Angela Loughton, Tim
Bruce, Ian (S Dorset) Luff, Peter
Burns, Simon Lyell, Rt Hon Sir Nicholas
Butterfill, John McIntosh, Miss Anne
Chapman, Sir Sydney MacKay, Andrew
(Chipping Barnet) Maclean, Rt Hon David
Chope, Christopher McLoughlin, Patrick
Clappison, James Madel, Sir David
Clark, Rt Hon Alan (Kensington) Major, Rt Hon John
Clark, Dr Michael (Rayleigh) Maples, John
Clarke, Rt Hon Kenneth Mates, Michael
(Rushclifte) Maude, Rt Hon Francis
Collins, Tim Mawhinney, Rt Hon Sir Brian
Colvin, Michael May, Mrs Theresa
Cormack, Sir Patrick Moss, Malcolm
Cran, James Nicholls, Patrick
Curry, Rt Hon David Norman, Archie
Davis, Rt Hon David (Haltemprice) Ottaway, Richard
Day, Stephen Page, Richard
Dorrell, Rt Hon Stephen Paice, James
Duncan, Alan Paterson, Owen
Duncan Smith, Iain Prior, David
Evans, Nigel Randall, John
Faber, David Redwood, Rt Hon John
Fabricant, Michael Robathan, Andrew
Fallon, Michael Robertson, Laurence (Tewk'b'ry)
Flight, Howard Roe, Mrs Marion (Broxbourne)
Forth, Rt Hon Eric Rowe, Andrew (Faversham)
Fowler, Rt Hon Sir Norman Ruffley, David
Fox, Dr Liam St Aubyn, Nick
Fraser, Christopher Sayeed, Jonathan
Gale, Roger Shepherd, Richard
Garnier, Edward Simpson, Keith (Mid-Norfolk)
Gibb, Nick Smyth, Rev Martin (Belfast S)
Gill, Christopher Soames, Nicholas
Gillan, Mrs Cheryl Spelman, Mrs Caroline
Goodlad, Rt Hon Sir Alastair Spring, Richard
Gorman, Mrs Teresa Stanley, Rt Hon Sir John
Gray, James Streeter, Gary
Swayne, Desmond
Green, Damian Syms, Robert
Greenway, John Tapsell, Sir Peter
Grieve, Dominic Taylor, John M (Solihull)
Hague, Rt Hon William Townend, John
Hamilton, Rt Hon Sir Archie Tredinnick, David
Hammond, Philip Trend, Michael
Hawkins, Nick Trimble, Rt Hon David
Hayes, John Tyrie, Andrew
Heathcoat-Amory, Rt Hon David Walter, Robert
Horam, John Wardle, Charles
Howard, Rt Hon Michael Waterson, Nigel
Hunter, Andrew Wells, Bowen
Jenkin, Bernard Whitney, Sir Raymond
Johnson Smith, Widdecombe, Rt Hon Miss Ann
Rt Hon Sir Geoffrey Winterton, Mrs Ann (Congleton)
Key, Robert Winterton, Nicholas (Macclesfield)
King, Rt Hon Tom (Bridgwater) Woodward, Shaun
Kirkbride, Miss Julie Yeo, Tim
Laing, Mrs Eleanor Young, Rt Hon Sir George
Lait, Mrs Jacqui
Lansley, Andrew Tellers for the Ayes:
Leigh, Edward Mr. Oliver Heald and Mr. John Whittingdale.
Letwin, Oliver
Abbott, Ms Diane Atkins, Charlotte
Anger, Nick Austin, John
Ainsworth, Robert (Cov'try NE) Baker, Norman
Alan, Richard Ballard, Mrs Jackie
Anderson, Donald (Swansea E) Barnes, Harry
Anderson, Janet (Rossendale) Barron, Kevin
Ashdown, Rt Hon Paddy Battle, John
Ashton, Joe Bayley, Hugh
Beckett, Rt Hon Mrs Margaret Dismore, Andrew
Begg, Miss Anne Dobbin, Jim
Beith, Rt Hon A J Donohoe, Brian H
Bell, Stuart (Middlesbrough) Doran, Frank
Benn, Rt Hon Tony Dowd, Jim
Bennett, Andrew F Drew, David
Benton, Joe Drown, Ms Julia
Bermingham, Gerald Eagle, Angela (Wallasey)
Berry, Roger Eagle, Maria (L'pool Garston)
Best, Harold Edwards, Huw
Betts, Clive Efford, Clive
Blears, Ms Hazel Ellman, Mrs Louise
Blizzard, Bob Ennis, Jeff
Borrow, David Ewing, Mrs Margaret
Bradshaw, Ben Fearn, Ronnie
Brake, Tom Held, Rt Hon Frank
Brand, Dr Peter Fisher, Mark
Breed, Colin Fitzpatrick, Jim
Brinton, Mrs Helen Fitzsimons, Lorna
Brown, Rt Hon Nick (Newcastle E) Flynn, Paul
Brown, Russell (Dumfries) Follett, Barbara
Buck, Ms Karen Foster, Rt Hon Derek
Burden, Richard Foster, Don (Bath)
Burgon, Colin Foster, Michael Jabez (Hastings)
Burstow, Paul Foster, Michael J (Worcester)
Butler, Mrs Christine Galbraith, Sam
Byers, Stephen Galloway, George
Cable, Dr Vincent Gapes, Mike
Caborn, Richard Gardiner, Barry
Campbell, Alan (Tynemouth) George, Andrew (St Ives)
Campbell, Mrs Anne (C'bridge) George, Bruce (Walsall S)
Campbell, Menzies (NE Fife) Gerrard, Neil
Campbell, Ronnie (Blyth V) Gibson, Dr Ian
Campbell-Savours, Dale Godsiff, Roger
Canavan, Dennis Goggins, Paul
Casale, Roger Golding, Mrs Llin
Caton, Martin Gordon, Mrs Eileen
Chapman, Ben (Wirral S) Gorrie, Donald
Chaytor, David Griffiths, Jane (Reading E)
Chidgey, David Griffiths, Nigel (Edinburgh S)
Chisholm, Malcolm Griffiths, Win (Bridgend)
Clapham, Michael Grocott, Bruce
Clark, Rt Hon Dr David (S Shields) Grogan, John
Clark, Dr Lynda Gunnell, John
(Edinburgh Pentlands) Hain, Peter
Clark, Paul (Gillingham) Hall, Mike (Weaver Vale)
Clarke, Eric (Midlothian) Hall, Patrick (Bedford)
Clarke, Rt Hon Tom (Coatbridge) Hamilton, Fabian (Leeds NE)
Clelland, David Hanson, David
Clwyd, Ann Harvey, Nick
Coaker, Vernon Heal, Mrs Sylvia
Coffey, Ms Ann Healey, John
Cohen, Harry Heath, David (Somerton & Frome)
Coleman, Iain Hepburn, Stephen
Colman, Tony Heppell, John
Connarty, Michael Hesford, Stephen
Cooper, Yvette Hewitt, Ms Patricia
Corbyn, Jeremy Hill, Keith
Corston, Ms Jean Hinchliffe, David
Cotter, Brian Hoey, Kate
Crausby, David Hoon, Geoffrey
Cryer, Mrs Ann (Keighley) Hope, Phil
Cryer, John (Hornchurch) Hopkins, Kelvin
Cummings, John Howarth, George (Knowsley N)
Cunningham, Ms Roseanna Hoyle, Lindsay
(Perth) Hughes, Ms Beverley (Stretford)
Dalyell, Tam Hughes, Kevin (Doncaster N)
Darling, Rt Hon Alistair Hughes, Simon (Southwark N)
Darvill, Keith Hurst, Alan
Davey, Edward (Kingston) Hutton, John
Davey, Valerie (Bristol W) Iddon, Dr Brian
Davies, Geraint (Croydon C) Illsley, Eric
Davis, Terry (B'ham Hodge H) Ingram, Adam
Dawson, Hilton Jackson, Ms Glenda (Hampstead)
Dean, Mrs Janet Jackson, Helen (Hillsborough)
Denham, John Jamieson, David
Jenkins, Brian Morris, Rt Hon John (Aberavon)
Johnson, Alan (Hull W & Hessle) Mudie, George
Johnson, Miss Melanie Murphy, Denis (Wansbeck)
(Welwyn Hatfield) Naysmith, Dr Doug
Jones, Barry (Alyn & Deeside) Norris, Dan
Jones, Helen (Warrington N) Oaten, Mark
Jones, Ms Jenny O'Brien, Bill (Normanton)
(Wolverh'ton SW) O'Hara, Eddie
Jones, Jon Owen (Cardiff C) Olner, Bill
Jones, Dr Lynne (Selly Oak) Öpik, Lembit
Jones, Martyn (Clwyd S) Organ, Mrs Diana
Jones, Nigel (Cheltenham) Osborne, Ms Sandra
Kaufman, Rt Hon Gerald Palmer, Dr Nick
Keeble, Ms Sally Pearson, Ian
Keen, Alan (Feltham & Heston) Pendry, Tom
Keen, Ann (Brentford & Isleworth) Pickthall, Colin
Kelly, Ms Ruth Pike, Peter L
Kemp, Fraser Plaskitt, James
Kennedy, Jane (Wavertree) Pollard, Kerry
Kilfoyle, Peter Pond, Chris
Kingham, Ms Tess Pound, Stephen
Kirkwood, Archy Powell, Sir Raymond
Kumar, Dr Ashok Prentice, Ms Bridget (Lewisham E)
Ladyman, Dr Stephen Prentice, Gordon (Pendle)
Laxton, Bob Prescott, Rt Hon John
Lepper, David Primarob, Dawn
Leslie, Christopher Prosser, Gwyn
Levitt, Tom Purchase, Ken
Lewis, Ivan (Bury S) Quin, Ms Joyce
Linton, Martin Rammell, Bill
Livsey, Richard Rapson, Syd
Lock, David Raynsford, Nick
Love, Andrew Rendel, David
McAllion, John Rogers, Allan
McAvoy, Thomas Rooker, Jeff
McCabe, Steve Rooney, Terry
McCafferty, Ms Chris Ross, Ernie (Dundee W)
McCartney, Ian (Makerfield) Rowlands, Ted
McDonagh, Siobhain Roy, Frank
Macdonald, Calum Ruane, Chris
McFall, John Russell, Bob (Colchester)
McGuire, Mrs Anne Russell, Ms Christine (Chester)
McIsaac, Shona Ryan, Ms Joan
McKenna, Mrs Rosemary Salmond, Alex
Mackinlay, Andrew Salter, Martin
McLeish, Henry Sanders, Adrian
Maclennan, Rt Hon Robert Savidge, Malcolm
McNamara, Kevin Sawford, Phil
McNulty, Tony Sheerman, Barry
MacShane, Denis Sheldon, Rt Hon Robert
Mactaggart, Fiona Short, Rt Hon Clare
McWalter, Tony Simpson, Alan (Nottingham S)
McWilliam, John Skinner, Dennis
Mahon, Mrs Alice Smith, Rt Hon Andrew (Oxford E)
Mallaber, Judy Smith, Angela (Basildon)
Marek, Dr John Smith, Miss Geraldine
Marsden, Gordon (Blackpool S) (Morecambe & Lunesdale)
Marsden, Paul (Shrewsbury) Smith, Jacqui (Redditch)
Marshall, David (Shettleston) Smith, Llew (Blaenau Gwent)
Marshall, Jim (Leicester S) Smith, Sir Robert (W Ab'd'ns)
Marshall-Andrews, Robert Snape, Peter
Martlew, Eric Soley, Clive
Meacher, Rt Hon Michael Southworth, Ms Helen
Meale, Alan Spellar, John
Michael, Alun Squire, Ms Rachel
Michie, Bill (Shef'ld Heeley) Steinberg, Gerry
Michie, Mrs Ray (Argyll & Bute) Stevenson, George
Milburn, Alan Stewart, David (Inverness E)
Miller, Andrew Stinchcombe, Paul
Mitchell, Austin Strang, Rt Hon Dr Gavin
Moore, Michael Stringer, Graham
Moran, Ms Margaret Stuart, Ms Gisela
Morgan, Alasdair (Galloway) Sutcliffe, Gerry
Morgan, Ms Julie (Cardiff N) Swinney, John
Morgan, Rhodri (Cardiff W) Taylor, Rt Hon Mrs Ann
Morris, Ms Estelle (B'ham Yardley) (Dewsbury)
Taylor, Ms Dari (Stockton S) Wareing, Robert N
Taylor, David (NW Leics) Watts, David
Thomas, Gareth (Clwyd W) Welsh, Andrew
Thomas, Gareth R (Harrow W) White, Brian
Timms, Stephen Whitehead, Dr Alan
Tipping, Paddy Wicks, Malcolm
Todd, Mark Williams, Rt Hon Alan
Tonge, Dr Jenny (Swansea W)
Touhig, Don Williams, Alan W (E Carmarthen)
Trickett, Jon Williams, Mrs Betty (Conwy)
Truswell, Paul Willis, Phil
Turner, Dennis (Wolverh'ton SE) Winnick, David
Winterton, Ms Rosie (Doncaster C)
Turner, Dr Desmond (Kemptown) Wise, Audrey
Turner, Dr George (NW Norfolk) Wood, Mike
Twigg, Derek (Halton) Woolas, Phil
Twigg, Stephen (Enfield) Wright, Anthony D (Gt Yarmouth)
Tyler, Paul Wyatt, Derek
Vaz, Keith
Vis, Dr Rudi Tellers for the Noes:
Wallace, James Mr. Graham Allen and Mr. Greg Pope.
Walley, Ms Joan

Question accordingly negatived.

It being Six o'clock, THE CHAIRMAN, pursuant to the Order [9 February] and the Resolution [this day], put forthwith the Question necessary for the disposal of the business to be concluded at that hour.

Clause 41 ordered to stand part of the Bill.

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