HL Deb 28 July 1998 vol 592 cc1439-86

(" —(1) The Secretary of State for Scotland shall be entitled to attend and participate in any proceedings of the Parliament.

(2) Subsection (1) does not confer on the Secretary of State for Scotland—

  1. (a) any right to vote, or
  2. (b) a right to attend or participate in the proceeding of any committee of the Parliament or sub-committee.

(3) The standing orders shall include provision for any documents which—

  1. (a) contain material relating to any proceedings of the Parliament which have taken place or are to take place, and
  2. (b) are made available to the members of the Parliament,
to be made available to the Secretary of State for Scotland no later than the time when they were made available to members of the Parliament who are not members of the Scottish Executive.").

The noble Earl said: None of us can forecast which will be the major political party in the Scottish parliament. It has already been clearly stated by my noble friends Lord Lang of Monkton and Lord Mackay of Ardbrecknish that the position of the Secretary of State is vague in the Bill. We shall be setting up a new parliament in Scotland. Many members may not have had much political experience. I believe that the amendment gives the Secretary of State, who is bound to be an experienced politician and a Cabinet Member, the opportunity to guide the new Scottish parliament in its first few years of existence.

After the first few years, the proposed amendment on the role of the Secretary of State could be repealed as being unnecessary. Some provision needs to guide the new parliament in its brand new functions and activities. I believe that the amendment is one way to achieve that. It would give the Secretary of State an opportunity to guide and assist the parliament to start off on the right tracks. I beg to move.

Lord Thomas of Gresford

After the turmoils in the Welsh Bill on this issue, I support the amendment moved by the noble Earl. It is interesting to consider paragraph 4.12 of the White Paper Scotland's Parliament. It states: The role of the Secretary of State for Scotland will be to secure the passage and implementation of the legislation to establish the Scottish Parliament; and then to support its initial development". That is the point the noble Earl made. Once the Scottish parliament is in being and the Scottish executive established, the responsibilities of the Secretary of State for Scotland will change. The focus will be on promoting communication between the Scottish parliament and executive, and between the United Kingdom Parliament and Government on matters of mutual interest, and on representing Scottish interests in reserved areas.

It follows that the plan behind the legislation is that there should be easy communication between the Secretary of State and Scotland, and, through the Secretary of State, between Scotland and Westminster. No machinery exists in the Scotland Bill to facilitate that. The noble Earl's amendment is taken word for word from the original clause that was contained in the Government of Wales Bill. (I am still campaigning for a Welsh parliament, notwithstanding the concessions that the Government have made on the issue).

It was laid down originally in the Government of Wales Bill in the terms of this amendment that the Secretary of State for Wales should have the right to attend and participate. But as the Bill passed through your Lordship's House, an amendment was accepted by the Government, who phrased it in their own way, that the Secretary of State for Wales could be required once a year to attend the Welsh assembly in order to discuss with the members of the Welsh assembly the legislative programme that the Government had in mind.

Of course it is a matter for the Scots themselves to determine what communication they want. But a machinery of the nature which the noble Earl proposes in the amendment, and which follows the machinery in the Welsh Bill, facilitates that essential communication. The Secretary of State is the person who links the Scottish and Westminster Parliaments together. Whether he represents Scotland in London or London in Scotland is a matter which experience will show.

I go further than the noble Earl and ask the Government to introduce at Report stage not simply this amendment but the amendment that was introduced into the Government of Wales Bill which would require the Secretary of State for Scotland to attend the proceedings of the Scottish parliament at least once a year.

We are dealing with a new body for which the privileges that these Houses of Parliament have enjoyed for so long are not as yet set in stone. It would be in the interests of Scotland and the Scottish people if, from time to time, persons who are not necessarily elected members of the Scottish parliament, such as the Secretary of State for Scotland, had the right to attend, and the Scottish parliament should have the right to require him to attend.

Lord Mackay of Ardbrecknish

The noble Lord, Lord Thomas of Gresford, has rightly pointed out the significant difference between the Scottish parliament and the Welsh assembly. I am sure that I know the answer that the noble Lord, Lord Sewel, will give but I am not going to give it for him. I do think that there is a point here, whether or not it is along the lines of my noble friend's amendment. No one is sure of the role of the Secretary of State for Scotland. The noble Lord, Lord Lang, earlier asked some penetrating questions about the future role of the Secretary of State for Scotland, but largely about his role here at Whitehall. What will his role be when his whole power base, which is a large government department with a budget of £14 billion, is removed? In my view, he will not sit in the same prominent position around the Cabinet table as he does today and he may well find himself below the proverbial salt.

The amendment addresses his relationship with the Scottish parliament. I can understand the difficulty of allowing him to be a participant and an attender. While this Parliament would not countenance any such arrangement by an outsider, I remind the Government that we are setting up a new parliament which must not be tied by all the traditions of Westminster. This is a brave new world where we can reinvent and change things. Noble Lords accuse me of doing this, but we should not get tied down to the Westminster model on all occasions and, dare I say it, neither should they. There may be something in my noble friend's amendment.

As my noble friend stated, none of us can forecast who will form the largest party, and he felt that that added to the importance of the Secretary of State being allowed to attend and participate. I have to say to my noble friend that the Prime Minister has forecast which party may become the largest party, and he does not like the forecast, hence the side shift of Mr. Brian Wilson and the fact that Mrs. Liddell has been sent to restore the position in Scotland.

I always thought from the nursery rhymes that it was the knight who was sent to help the damsel in distress but in this case the damsel is being sent to help her benighted party in its distress in Scotland. As I am a confirmed Unionist, I suppose that I ought to wish her well, but I do not think that I would have sent the honourable lady to defend the Union, given some of the things that she has said in past years from the Opposition Benches. However, that is another matter.

Whichever is the major party in the Scottish parliament, it is right that we should establish a proper line of communication between that parliament and the Secretary of State for Scotland and the United Kingdom Parliament. My noble friend may not have got it entirely right but the Government have accepted the importance of this link in the Welsh Bill, as the noble Lord, Lord Thomas, said, and it is included in the legislation. The Government should consider something like that for the Scottish Bill.

9.30 p.m.

Lord Sewel

I am grateful to the noble Earl for explaining that the intention in moving the amendment is to ensure that the new parliament in its early years will be able to benefit from the guidance and assistance of an experienced politician. I have to say that I do not believe the parliament will be short of politicians, some of them considerably experienced—at least if some Members of your Lordships' House have their way.

Having listened to the noble Lord, Lord Mackay of Ardbrecknish, I do not believe that there is a great deal of difference between us. We both recognise that there is a need to establish good lines of communication, but we have reservations about the right to attend and the right to speak.

I also believe that it would be a little patronising to say to the Scottish parliament, "Look, you are so inexperienced and immature that in those first few years you need someone to show you the ropes". I do not believe that that would go down well and I believe that any possible advice and guidance that a Secretary of State could give would tend not to be accepted for that very reason.

I am also conscious of the comparison that has been made with Wales, because the wording of the amendment is drawn from the Government of Wales Bill. As we have tried to explain during the passage of the Bill, there is a fundamental difference between the Welsh assembly and the Scottish parliament. There was an interesting slip of the tongue when the noble Lord, Lord Thomas of Gresford, referred to the Welsh parliament. The difference is that the Welsh parliament—there we are, be careful! The difference is that the Welsh assembly does not have primary legislative powers, so it is quite understandable that the Secretary of State for Wales will be required to attend the Welsh assembly and describe the legislative programme of the United Kingdom Government in relation to Wales. That situation simply does not arise in the context of the Scottish parliament. The Scottish parliament has primary legislative powers. It is very much master in its own house in terms of primary legislation. Therefore, the Welsh comparison is not well founded.

Although the amendment's objectives are perfectly laudable in trying to establish a sound basis of communication, it runs into troubles such as blurring the lines of accountability and setting up a relationship which in itself will lead to the kind of advice which the noble Earl wished to be transmitted actually being discounted. The comparison with Wales is wrongly based.

My preference is for the parliament and the Secretary of State to work out what they consider to be the most effective way in which communication can be enhanced and subsequently maintained. On that basis, I ask the noble Earl to withdraw his amendment.

The Earl of Balfour

I am obviously happy to withdraw the amendment. One of the reasons I tabled it was that the position of the Secretary of State once the parliament is set up appears to me to be so very vague. That was one of the reasons why I felt that it was worth while to bring the amendment forward. However, after hearing what has been said, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 37 [Defamatory statements]:

Lord Mackay of Drumadoon moved Amendment No. 251:

Page 18, line 17, at end insert (", and (c) any written or oral communication by a member of the Parliament to a member of the Scottish Executive, to the Presiding Officer or his deputies, or to a Minister of the Crown,").

The noble and learned Lord said: This amendment raises a very short point; namely, whether the provisions in Clause 37, which extend the concept of absolute privilege to statements made in parliament and publications made under the authority of the parliament, should also be extended to written or oral communication by members of the parliament to the various persons set out in my amendment.

It is important that members of the new parliament should be able to discharge their duties both within and without the chamber vigorously and responsibly without the fear of being sued. That is recognised in the clause as presently drafted. My amendment would take it one stage further. I hope that a constructive response will be forthcoming from the Minister. I beg to move.

Lord Thomas of Gresford

I find this a most interesting amendment because it raises a matter of historical and constitutional importance. The privileges of this House have long been protected. I hope that the Committee will forgive me, in the absence of my noble friend Lord Russell, for going back to the 17th century. In 1621 the other place declared that the privileges of parliament were the birthright and inheritance of the subject. Those ancient privileges were enshrined in the Declaration of Rights of 1688, which was given statutory form in the Bill of Rights of 1689, Article 9 of which stated that, the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament". Notoriously, Members of both Houses abused their privileges in the 18th century in respect of immunity from civil actions and from arrest. It was said that many Members of Parliament had to flee when Parliament was not sitting and spend their time in France rather than face the bankruptcy court. And so by the Parliamentary Privilege Act of 1770, Members were rendered liable to ordinary proceedings for their normal private behaviour, together with their menial and other servants.

The question then arose as to the extent of their privileges and what was meant by the term "proceedings in Parliament" in Article 9 of the Bill of Rights. A resolution in 1837 stated that, by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges and that the institution or prosecution of any action, suit or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon". But did it extend, as this amendment seeks to do, privileges to correspondence with Ministers? That was a matter which came before the other place on 8th July 1958. Your Lordships will forgive me for this tour through history but it helps to illustrate the extent to which the noble and learned Lord's amendment goes far beyond anything that we have ever known before.

On 7th July 1958, there was a debate in the other place which was concerned with a letter that Mr. George Strauss had written to the then Minister of Power concerning the London Electricity Board and its manner of dealing with scrap. That was passed by the Minister of Power to the chairman of the London Electricity Board, who then threatened a libel action, and the matter went to the Committee of Privileges and also to the Judicial Committee of the Privy Council. It was a most unusual proceeding that the Judicial Committee of the Privy Council became involved.

The Committee of Privileges said, yes, there had been a breach of privilege because that letter to a Minister—which is what this amendment is about—was privileged; it was part of the proceedings of Parliament; but that no action should be taken. Those are the circumstances in which the debate then took place.

The view was hotly contested, not least by the then Attorney-General, Sir Reginald Manningham-Buller, as he then was, who said: The conclusion of the Committee of Privileges in this case that there was a breach of Privilege depends on the conclusion that the action of the right hon. Gentleman [in sending a letter to a Minister] was a proceeding in Parliament, within the meaning of the Bill of Rights". He went on to say: The Bill of Rights is a Statute, and the meaning to be attached to the words in that Statute, 'proceedings in Parliament', is a question of law. This House, of course, can put its own interpretation upon those words, but … that will not be binding on any court of law, and it is because the courts may reach a different conclusion as to what are the Privileges of Parliament from what this House may reach that a conflict may arise. We are not here concerned with any Privilege based on any custom or usage, but with a Privilege enshrined in a Statute. In my opinion it would be wrong if this House sought to give a meaning to a Statute which that Statute does not and cannot have. I feel bound to advise the House, as I advised the Committee of Privileges, that in my opinion there cannot be the slightest doubt that the answer to the question whether the letter written by the right hon. Gentleman [to the Minister] was a proceeding in Parliament is 'No'". He was supported in that conclusion by Mr. Dingle Foot, who was, of course, from the Labour Party, and construed the statute in the same way. He said that the Bill of Rights was concerned with interference by the Crown, and added: I imagine that they had in mind particularly the case of Sir John Eliot who died in the Tower as a victim of Royal vengeance for the words he had spoken in this House".—[Official Report, Commons, 8/7/58; cols. 250, 251 and 299.] He came to the firm conclusion that correspondence by a Member with a Minister could not, save in the sort of circumstances where the draft of a Parliamentary Question was sent forward, be considered as a document entitled to absolute privilege, which is what this amendment seeks to secure for the Scottish parliament. After a lengthy debate and on a free vote, the House of Commons resolved that the letter of Mr. Strauss was not a proceeding in Parliament and was of the opinion, therefore, that the letters from the chairman of the London Electricity Board threatening libel constituted no breach of privilege.

So far as I am aware, the next thing that happened was what one might call the "Neil Hamilton Act 1996"—in other words, the Defamation Act 1996, which contains further definitions of what are "proceedings in Parliament". I shall not weary Members of the Committee with the various matters which were considered to be proceedings in Parliament. However, what the 1996 Act does not suggest is that a written or oral communication by a Member of Parliament to a Member of the Cabinet, to the Speaker or to a Minister of the Crown can be absolutely privileged. Of course it has "qualified privilege"; that is to say, a communication between a Scottish member to the Scottish executive, and so on, will be entitled to qualified privilege in a libel action, which means that an aggrieved plaintiff would have to prove malice. I see nothing wrong in the proceedings being challenged if there is malice, but I do not believe that we should have the absolute privilege suggested by the amendment.

I apologise for taking Members of the Committee so far through constitutional history. However, it seems to me that the amendment goes way beyond the privileges of this Parliament. I am sure that, on reflection, the noble and learned Lord will decide not to pursue it.

Lord Hope of Craighead

I should like to add just a few points to the very interesting comments made by the noble Lord, Lord Thomas of Gresford. It seems to me that the amendment raises a practical problem and an issue of principle. The practical problem arises in the following way. Written communications are subject to the modern disease; namely, proliferation by means of the photocopier. Although the amendment is carefully drawn to restrict itself to communications from a member of the parliament to certain persons, it is quite possible that copies of such documents may pass to other people by various means.

Similarly, in the case of oral communications, they may form the basis of a memorandum or a note which may then, in the same way, pass outside the files of the recipient. Recent experience I have had indicates that in various ways, either by discovery under the English civil process or by the disclosure rules which apply in the criminal process in England, substantial numbers of documents may pass well beyond the confines of the files to which they were originally consigned. It is quite possible that communications which the Member of Parliament thought would be personal to him and the person to whom he has written will find their way far beyond the original communication into the hands of someone who may feel aggrieved or defamed by what is contained in it.

That is the scale of the problem. There is certainly an issue to be addressed. I am bound to say that I take the same view in principle as the noble Lord. To give absolute privilege to these communications, whatever the circumstances—whether the communications are made outside Parliament or whatever else—goes further than is necessary. As has been said, there is the protection of qualified privilege. English law at least, and maybe Scottish law as well, is developing other mechanisms to protect people who are or may be affected by the release of documents by discovery and also by the release of documents in the criminal process. Those protections are available too.

On balance, I think that the amendment goes further than is needed despite the scale of the practical problem to which I referred.

9.45 p.m.

Lord Rodger of Earlsferry

Perhaps I may say, with respect, that I agree with what has been said by the noble and learned Lord, Lord Hope of Craighead. Nonetheless, I am aware, because I was summoned to give evidence before it, that there is a joint committee of this House and the House of Commons under the chairmanship of the noble and learned Lord, Lord Nicholls of Birkenhead, which is considering many of the issues concerning parliamentary privilege.

When I gave evidence I was struck by the fact that that committee was amazed that in considering questions of privilege, and so on, in relation to the parliament in Scotland, little consideration appeared to have been given to all the various pieces of evidence received about exactly the same matters in relation to the Westminster Parliament.

Like the noble and learned Lord, Lord Hope, I rather think that the amendment goes too far. I wonder what thought has been given to the possible recommendations—I do not think that any have yet been made—of the committee which has been set up. The committee has considered in great detail the complicated issues which arise, for example, in relation to communications between Members of Parliament and Ministers in relation to privilege. What consideration has been given to these issues in relation to the Scottish parliament?

It seems to me that although there is no reason why the Scottish parliament should ape the Westminster Parliament, equally there is no reason why the Scottish parliament should ignore all the experience which has been built up over the years and, in particular, all the consideration which has been given in recent months by a distinguished committee under the chairmanship of the noble and learned Lord, Lord Nicholls, which has great experience, both as regards the position in the Commons and the position in this House. I wonder what consideration has been given to all these matters in formulating what appear to me rather brief provisions in the context of the Bill.

Lord Archer of Sandwell

Perhaps the noble and learned Lord will forgive me. While, of course, I appreciate what he says, namely, that the committee has done a great deal of work, it is some little distance from reporting, as he knows. In those circumstances it would be difficult for the Government to give consideration to its conclusions.

Lord Rodger of Earlsferry

I fully accept the caveat which the noble and learned Lord puts because I think he is a member of the Committee. Nonetheless, I think he may have been struck, as I was, by the fact that we seemed to be going down one road when the committee was considering these matters in relation to Westminster. Here we are taking decisions in connection with the parliament in Edinburgh which seem not altogether to be synchronised.

Lord Hardie

I am grateful for the comments of noble Lords and noble and learned Lords. I particularly enjoyed the exposition of the noble Lord, Lord Thomas of Gresford, with regard to the history of the question of privilege. I am also grateful to the noble and learned Lord, Lord Mackay of Drumadoon, for moving this amendment, as it gives me an opportunity to explain why we have included Clause 37 in the Bill. This may go some way towards answering the question posed by the noble and learned Lord, Lord Rodger of Earlsferry.

I think it is important to understand the thinking behind the way in which we have approached the issue of defamation. As noble Lords and noble and learned Lords have acknowledged, it is quite proper that we should provide the parliament's proceedings with some shelter from the risk of actions of defamation. Absolute privilege is, of course, the strongest form of legal protection from defamation proceedings. It confers a powerful protection in any circumstances in which it applies.

For that reason we need to be clear about why that protection is conferred and to be sure that we have applied it no more widely than is justified. I believe that was the thrust of some of the comments of the noble Lord, Lord Thomas of Gresford, and of the noble and learned Lord, Lord Hope of Craighead. For that reason we have deliberately framed Clause 37 so that absolute privilege applies only to any statement made in the proceedings of the parliament, and to any publication made under the parliament's authority. This is deliberately done to ensure that the work of the parliament is not hindered or inhibited by fear that actions for defamation may be raised, while at the same time restricting the areas which are protected.

I hope it will be helpful to the Committee if I clarify that we intend that the same broad construction should be placed on the term "proceedings of the parliament" in this Bill as applies in relation to the equivalent privilege at Westminster. Therefore we are going no further than the Westminster privilege but we would hope that the same approach would be taken. The words "proceedings of parliament" have not been defined in statute for the purposes of Westminster. However, their meaning has been established by convention and case law over many years.

We are aware that attempts have been made for some purposes to make explicit what activities the term "proceedings of the parliament" may include, albeit not in an exhaustive way. The noble Lord, Lord Thomas of Gresford, referred to the Defamation Act 1996. Section 13(4) of that Act sets out a range of activities which are to be construed as falling within the definition of things said or done, in the course of, or for the purposes of or incidental to, any proceedings in Parliament". These include, for example, communications with the Parliamentary Commissioner for Standards or with any person having functions in connection with the registration of members' interests.

In this Bill we are deliberately choosing to make a simple reference to "proceedings of the parliament". However, I recognise that there is an element of judgment being exercised in taking this approach. As I have mentioned, we intend that this reference should be taken to have the same broad scope as it has in the case of this Parliament. By relying on this general term, we also leave room for the development of new ways of working in the parliament which may not be easily foreseen at present, and we ensure that the privilege conferred by this clause need not be limited only to the particular types of parliamentary activity we are able to identify at the present time.

We cannot accept this amendment. We have deliberately drawn the line around parliamentary proceedings. Provided that a particular statement can be construed as being made in that context, we think it right that it should benefit from this broad protection. The amendment, by contrast, seeks to protect in general terms communications between members of the Scottish parliament and particular types of person. Many of those may well in practice fall within the boundaries of parliamentary proceedings. For example, communications between a member of the Scottish parliament and the presiding officer may well fall within that category in certain circumstances. However, where for any reason such a communication does not fall into that category, we do not see that we could justify conferring this privilege upon it. Absolute privilege absolves a person from having to defend his statements on grounds of truth or absence of malice. Accordingly, the protection must be restricted.

I do not think it is helpful to speculate on the circumstances in which the types of communication mentioned in the amendment might, or might not, be deemed to fall within the definition of being made in proceedings. Members of the Scottish parliament will have to judge where the boundaries lie in any particular case—as indeed do Members of this Parliament at present. We see no good reason for introducing any kind of blanket exemption on the lines proposed—that would not be in line with the thinking behind this clause, which is properly concerned with the context within which statements are made.

Finally, perhaps I may deal with the point raised by the noble and learned Lord, Lord Rodger of Earlsferry. Once the Nicholls Committee reports, the contents and recommendations of the report will be taken on board and will be given proper and full consideration. With that, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

This has been a useful debate arising out of what I originally saw as a comparatively small amendment. I fully accept the force of what the noble and learned Lord, the Lord Advocate, says about not wishing to extend to members of the Scottish parliament greater protection than might be available to Members of this House or another place. Equally, it is important that we raise the issue. As I understand it, the Nicholls Committee is seeking to examine the whole issue thoroughly. We may well return to some of the matters discussed by the committee in the taking of evidence when we consider Amendment No. 219G. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 [Contempt of court]:

The Deputy Chairman of Committees (Baroness Lockwood)

I must point out that, if Amendment No. 252 is agreed to, I cannot call Amendment No. 252A under the rules.

Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 252:

Page 18, line 25, leave out ("a") and insert ("an accurate").

The noble and learned Lord said: I can put the Minister out of his agony. I do not propose to insist on my Amendment No. 252. It is clear that Amendment No. 252A addresses the same issue in a broader way. We are uniquely agreed that Amendment No. 253 should be allowed. I hope that these two small amendments will prove acceptable to both sides of the Committee.

[Amendment No. 252 not moved.]

Lord Hardie moved Amendment No. 252A:

Page 18, line 25, after ("a") insert ("fair and accurate").

The noble and learned Lord said: The noble and learned Lord, Lord Mackay of Drumadoon, tabled Amendment No. 252, which has not been moved. I am pleased to say that Amendments Nos. 252A and 253, in the name of both the noble and learned Lord, Lord Mackay of Drumadoon, and my noble friend Lord Sewel, seek to address a minor defect in the Bill. We are in the happy position of accepting the suggestion put forward by the noble and learned Lord. My only regret is that the noble Baroness, Lady Carnegy of Lour, did not put her name to these amendments, in view of the discussion that we had outwith the Chamber.

The position is that, as framed, the provision in Clause 38 does not get the balance quite right so far as concerns the reports of proceedings. Our intention is to ensure that those reporting proceedings are not hampered in their work of keeping the public properly informed. The purpose of the amendments is to rectify the minor defect in Clause 38. I beg to move.

10 p.m.

Lord Thomas of Gresford

I support the amendments but ask the noble and learned Lord to draw to the attention of the noble Lord, Lord Williams of Mostyn, in relation to the Government of Wales Act, that the wording which the noble and learned Lord has just condemned as defective appears in its full glory in the Government of Wales Bill.

Lord Hardie

I cannot be responsible for the Welsh!

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 253:

Page 18, line 25, at end insert ("made in good faith").

The noble and learned Lord said: This amendment has already been spoken to. I suggest to the noble and learned Lord the Lord Advocate that, as the noble Lord, Lord Williams of Mostyn, has today been promoted, it would be churlish to spoil his happy day through conveying the comments of the noble Lord, Lord Thomas of Gresford, to him.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 agreed to.

Clause 40 [Calculating time for meeting of the Parliament]:

[Amendment No. 253A not moved.]

Clause 40 agreed to.

Clause 41 [The Scottish Executive]:

[Amendments Nos. 254 and 255 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 255A:

Page 19, leave out lines 2 and 3 and insert—

("(1A) Neither a Scottish Law Officer nor a Law Officer of the United Kingdom may be a member of the Scottish Executive").

The noble and learned Lord said: This is one of a series of amendments which deal with the position of the Scottish Law Officers. Although later we turn to the question of whether the post of the Lord Advocate should be devolved, the amendments apply irrespective of the outcome of that discussion.

Amendment No. 255A seeks to provide that neither a Scottish Law Officer nor a Law Officer of the United Kingdom may be a member of the Scottish executive. Amendment No. 257B seeks to amend Clause 48 on page 22 at line 2 by inserting the words, save that a Scottish Law Officer may not exercise any statutory function of a member of the Scottish Executive who is not a law officer". Amendments Nos. 271R and 271S are of a fairly consequential nature.

The real issue is to seek to establish that the Scottish Law Officers should be independent of the Scottish executive and also independent of the United Kingdom Government. As the Committee will be aware, the Law Officers of the UK Government have separate departments. The Attorney-General and Solicitor-General are Ministers in the Law Officers' Departments in London and the Lord Advocate and Solicitor-General for Scotland are Ministers in the Lord Advocate's Department, which has offices in Edinburgh and London.

While the Law Officers' advice is regularly sought on policy development and in the planning and programme of Bills and discussions of major policy initiatives, and while they play an important role in taking Bills through this House and another place, they are in departments which are physically, administratively and constitutionally separate from the departments that contain the political Ministers. In my view, that separation is extremely important. It means that there is a separation between policy making and responsibility for such policy on sensitive and important political issues and, on the other hand, the role of the Law Officers, which is primarily involved in giving legal advice to government Ministers and assisting them with their parliamentary work.

Constitutionally, a veil has been drawn over the role which Law Officers play in giving advice to Government Ministers and their departments. The convention is that, in this Chamber and in another place, it is improper—I believe I use that word correctly—for a Minister at the Dispatch Box to acknowledge the existence of such advice, let alone the contents of it. I do not in any sense demur at the view that those are sensible conventions.

However, the giving of such advice is not just a casual part of the everyday work of government. When a Minister or his department require advice, civil servants in his department—possibly working with their own solicitors—prepare instructions for the Law Officers which are then sent to the Law Officers' department to provide that legal advice at arm's length.

I have a number of reasons for suggesting that the Law Officers of the new parliament should not be members of the Scottish executive. First, it is not normal for a lawyer to give advice to a body of which he is a full member. That is not just the position within government; it is also the situation in private practice. When one looks at Clause 48(3) and (4), on which we have already had some discussion, it will be seen that not only are the Law Officers full members of the Scottish executive, but that the statutory functions of the individual Ministers can be exercised by any member of the executive, whoever that person is—subject of course to how the first minister may allocate individual responsibilities.

Secondly, there is the role which the Government seek to give the Law Officers on devolution issues. We have already discussed that. Reference is made to the judicial committee prior to a Bill becoming an Act of the Scottish parliament and it is obvious from the provisions of Schedule 6 that such role will continue after the Acts receive Royal Assent. I do not intend to rehearse what was said earlier, but the importance of the Lord Advocate and the Solicitor-General, if they are to be the Scottish Law Officers, taking an independent role cannot be overstressed.

A third reason why I believe it to be inappropriate for the Lord Advocate and the Solicitor-General for Scotland to be members of the Scottish executive is that the Lord Advocate will continue to discharge the role of independent public prosecutor. In exercising that role and discharging his duties, he will have to have regard to the public interest, not only of the people of Scotland, but also on occasion to the interests of the whole population of the United Kingdom. A number of the cases he has to handle are not necessarily just high profile ones, but the more routine cases which will involve the prosecution of people in England and working with UK bodies such as Customs and Excise.

A fourth reason for the view I hold is this. We are heading towards a parliament elected by proportional representation. That must increase the prospects of an executive having to be formed by some coalition or other. If members of more than one political party form the Scottish executive, there is a strong argument that the Lord Advocate should be outwith the executive. Whether he be a member of one political party or another, in a situation where he was a full member it might be much more difficult for him to be perceived to be acting in the independent way in which Law Officers are expected to act; a way in which anyone who holds a post as a Scottish Law Officer would wish to act.

I shall be interested to hear what the noble and learned the Lord Advocate and other noble Lords have to say in response to my amendments. I beg to move.

Lord Rodger of Earlsferry

With the noble and learned Lord's experience of office as a Law Officer, he will know that one of the responsibilities—and it is perhaps the least desirable and least enviable responsibility—is from time to time to advise the Government that they cannot do what they would like to do. As I understand it, the convention which applies within the United Kingdom system is that where a Law Officer so advises in firm terms—in particular terms—the Government do not act against that advice. Can the noble and learned Lord say whether anything in this Bill—or anything at all—indicates that in the context of devolution the same convention will apply to advice given by the Lord Advocate? That is a matter of considerable importance in connection with the various matters that have been discussed in relation to vires and so on. It has a bearing on the kind of issue that has been raised by the noble and learned Lord, Lord Mackay of Drumadoon, in this amendment.

Lord Hardie

I shall answer the point raised by the noble and learned Lord, Lord Rodger of Earlsferry. There is nothing specific in the Bill which would mirror that convention. It is expected that the convention would continue. Certainly I would be surprised if it did not.

Lord Rodger of Earlsferry

Why is it expected? We have heard a good deal about how the parliament will have a new convention. Everything will have to be redevised. In that context, why does he expect that it will be reflected? I hope it will be reflected. I share the noble and learned Lord's view that it should be reflected. If that is so, why are the Government not putting that on to the face of the Bill? If that is what they expect, if that is the way in which the parliament and the executive should behave, why is it not in the Bill? On what basis is it expected that the convention which exists will be applied? On a number of occasions, in this House and elsewhere, I have raised the point that there is nothing to replicate the conventions upon which the whole system works at present. If it is not replicated, upon what basis other than optimism does the noble and learned Lord believe that that will be replicated in this context?

10.15 p.m.

Lord Hardie

If by "optimism" the noble and learned Lord means "confidence in the parliament", I accept that it is optimism and confidence that I have that the politicians and the executive will behave in a responsible manner. It is inconceivable that with the creation of Law Officers with the independence enshrined in the Bill that politicians would not follow this well-known practice.

The policy which the Bill reflects was summarised briefly in the White Paper. It recognised that the Scottish executive would require the services of Law Officers to provide it with advice on legal matters and to represent its interests in the courts and that 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. I do not propose to rehearse those in any detail.

The effect of Clause 45(3) is that the Lord Advocate and the Solicitor-General will cease to be Ministers in the United Kingdom Government and to be the United Kingdom Government's Scottish Law Officers. It is envisaged that that will take place shortly after the first appointment of the first minister so that the Scottish law officers will be part of the Scottish executive from the beginning and will be able to influence and to shape the working practices of the executive even before the principal appointed day when the Scottish ministers will acquire their full powers.

Clause 45(1) provides for the appointment and removal from office of the Scottish law officers. When the Lord Advocate ceases to be a member of the United Kingdom Government and becomes a member of the Scottish executive, it is proposed that he should retain his existing and traditional functions as head of the systems of criminal prosecution and investigation of deaths in Scotland. Those functions are to be retained by him in his own name and will be capable of being exercised only by him or, when he is unavailable, by the Solicitor-General for Scotland.

The Lord Advocate will be entrenched in that role by Clause 28(2)(e), which prevents the parliament from removing him from his position as head of those systems. This does not prevent the parliament from amending those systems, but Clause 45(2) confirms the continued independence of the Lord Advocate in his capacity as the head of those systems by providing that any decision of the Lord Advocate in that capacity, shall continue to be taken by him independently of any other person". Those provisions secure the protection that the Lord Advocate requires to fulfil his responsibilities in a way that will uphold his traditional independence.

As I explained previously in answer to a question from the noble and learned Lord, Lord Rodger of Earlsferry, it is proposed that all the other functions currently exercised by the Lord Advocate which do not relate to his Law Officer functions will be transferred from him before he ceases to be a Minister of the Crown and becomes a member of the Scottish executive. That is important. As the noble and learned Lord will be aware, the Lord Advocate has functions which are executive in nature in relation to, for example, certain functions which are the responsibility of the Scottish courts' administration. Those functions, and involvement in the recommendations for appointment of industrial tribunal and other tribunal chairmen, are executive functions. Three other transfer of functions orders will be needed in order to effect that and, for the information of the Committee, I have laid working drafts of those transfer of functions orders in the Printed Paper Office.

One of the transfer of functions orders proposes to transfer to the Secretary of State functions which the Lord Advocate currently exercises in relation to devolved matters, apart from the functions which he is retaining. Those are executive functions. They will then be transferred to the Scottish ministers on D-day under Clause 49. All 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. The Lord Advocate and the Solicitor-General will be Scottish ministers and the first minister could allocate some of those functions—or, indeed, additional functions—to them as Scottish ministers.

In the light of that background, I turn to the amendments proposed by the noble and learned Lord, Lord Mackay of Drumadoon. At present, because the Lord Advocate has certain executive functions—as a Law Officer, he gives legal advice to the Government—what is proposed is not incompatible with his present role in that regard. Nor is his involvement with the executive and these other executive functions incompatible with his role as an independent public prosecutor. The noble and learned Lord will be aware that throughout the centuries the Lord Advocate has been very jealous of the independence of his role as public prosecutor and has continued to act in the public interest both for the people of Scotland and for the people of the United Kingdom. That will continue after devolution. There is no inconsistency in his role as independent prosecutor and his role in performing certain executive functions.

Amendment No. 257B would prevent the Scottish law officers from exercising any of the statutory functions of a member of the Scottish executive other than those that are specific to a law officer. The Government cannot accept this amendment. It goes against the general approach in the Bill, which is to make all the functions transferred to or conferred upon Scottish Ministers capable of being exercised by any of them in accordance with whatever allocation of functions is decided upon by the first Minister.

The amendment would also prevent the Scottish law officers from exercising any of the functions which are transferred to Scottish Ministers under Clause 49 or 59. It would deny them the opportunity to exercise the administrative and policy functions which are currently exercisable by them, for example, in relation to civil jurisdiction and procedure, diligence and the law of evidence and which will be transferred to Scottish Ministers. In practice it is likely that these kinds of policy functions which relate to the Scottish judicial system will be exercised by the Scottish minister responsible for civil justice matters. At the present time that is the Lord Advocate. There is no reason to deprive a future Lord Advocate of the opportunity of performing these functions if the first minister considers that it is appropriate that he should do so.

That will also be the case with regard to a number of functions which are currently exercised by the Lord Advocate or the Secretary of State in relation to tribunals concerned with reserved matters which it is proposed should be transferred to Scottish ministers by an order under Clause 59. These functions involve making, or being consulted about, appointments, procedural rules and other procedural matters. We also expect the first minister to allocate these functions to the Scottish minister responsible for civil justice matters. At present that is the Lord Advocate. Why after devolution should the first minister not be allowed to allocate that function to the Lord Advocate again if he considers that to be appropriate? In exercising those functions, the role of the relevant Scottish minister, whether it is the Lord Advocate or any other minister, will relate to his involvement in the civil justice system rather than any other policy interest of the Scottish executive in the matters concerned.

It is appreciated that it may not be appropriate for the first minister to allocate certain of the functions of the Scottish ministers to the Scottish law officers, such as those which impinge on the criminal justice system, in view of their present prosecution responsibilities. That is observed at the present time. It is inconceivable that any Lord Advocate would accept any responsibility which conflicted with his independent function of prosecutor. However, the reasons given by the noble and learned Lord do not seem to be sufficient grounds to prevent certain appropriate policy functions from being allocated to the Scottish law officers if the first minister wishes to do so.

In the light of these explanations, I ask the noble and learned Lord to withdraw his amendment.

Lord Thomas of Gresford

It is with some trepidation that I venture into this field in the presence of the noble and learned Lord the Lord Advocate and former holders of that office. It is not entirely clear why the Lord Advocate and Solicitor-General should be Scottish ministers within the Scottish executive who do not necessarily exercise law functions. Under Clause 26 of the Bill it is not necessary for the Lord Advocate or the Solicitor-General for Scotland to be a member of the Scottish parliament. In all probability the law officers will not be elected members of the parliament. They will no doubt be appointed under Section 45(1), and the traditional role, certainly of the Attorneys General in this jurisdiction and in Commonwealth jurisdictions, is to give independent advice to government on legal issues which that government have to consider. But making them members of the Scottish executive suggests to me that the doctrine of Cabinet collective responsibility has to be dented. The Scottish executive cannot have in its number the Lord Advocate and Solicitor-General for Scotland, who may be charged with other duties beyond their normal functions, and yet expect them to be bound by Cabinet collective responsibility or anything of that nature. Yet, if it is suggested that they should be, they are the people who, under Clause 32, for example, may refer questions as to whether a Bill or any provision of a Bill is within the legislative competence of the parliament.

They have to stand away from the decision of the Scottish executive if they consider that the Scottish executive is acting outside its powers. I can see the practicality of having Scottish law officers within the executive from the beginning to guide the new body, as the noble and learned Lord explained. I can see its practical utility; nevertheless, it seems to me that there cannot be collective responsibility for the decisions of the Scottish executive if they are part and parcel of that Scottish executive. I should be grateful if the noble and learned Lord can tell me whether I am entirely wrong in that assumption.

Lord Hardie

The noble Lord is wrong. The position, as I sought to explain, is that at present the Lord Advocate has certain executive functions which are separate from the Law Officer functions and separate from his functions as a prosecutor. In exercising those functions, such as the responsibility for civil law, civil evidence and procedure, the Law Officers, in exercising those functions, are exercising an executive function as part of the executive. To that extent they would have collective responsibility in that regard.

On the other hand, when they act as Law Officers they do separate themselves from the executive and they give advice independently; similarly, when they act as prosecutors. The law is quite different from that in England in relation to the prosecution function. That is quite separate from the executive and there is no executive interference in the prosecutorial role and that would not be accepted or tolerated by any Lord Advocate, nor would the executive seek to interfere in that.

At present, the existing Law Officers, both Scottish and English, are part of the UK Government, so why should the position be different for the Scottish parliament? Why should the Scottish Law Officers not be part of the Scottish government and part of the Scottish executive, able to perform executive functions which are not incompatible with their functions as Law Officers or their functions as prosecutors, just as they perform certain executive functions now which are not incompatible with these functions?

As I said, it would be inconceivable that the first minister would allocate any of the responsibility for criminal procedure or anything of that kind to the Lord Advocate. That might well conflict with his role as a prosecutor. It might be seen to be influencing the prosecution by undertaking that. That is allocated to a different Minister, not the Law Officers in Scotland. I hope that that will have reassured the noble and learned Lord.

10.30 p.m.

Lord Mackay of Drumadoon

Before the noble and learned Lord sits down—I should know the answer to this question—is there to be any form of parliamentary scrutiny of the first minister's allocation of duties among the members of the Scottish executive, in particular as to which functions he allocates to the Lord Advocate?

Lord Hardie

I, too, should know the answer. My recollection is that there is not. The parliament will be involved in the approval of the appointment of Ministers, but the allocation of duties as between Ministers would be a matter for the first minister.

Lord Mackay of Drumadoon

That accords with my understanding of the Bill, unless the function came from a Minister of the Crown through a Section 59 order. That might be an exception to it.

This debate has been useful. I do not believe that there is anything between the noble and learned Lord the Lord Advocate and myself about certain important parts of the future role of the Scottish Law Officers. First, if the Lord Advocate is to be devolved then his independent role as public prosecutor has to be protected. I fully acknowledge that in provisions in the Bill, as he says, his independence is enshrined.

Beyond that, I still have some uneasiness that the Lord Advocate and the Solicitor-General will be members of the Scottish executive and not part of a separate government department, as the UK Law Officers are. It is true, as the noble and learned Lord said, that the Lord Advocate has certain executive functions. I have a copy of the draft order and the briefing guide with it to which he referred. A long list of Bills sets out where his powers are to be found. Most of them relate to the making of appointments and the laying down of certain procedures to be followed by different tribunals. But, as the noble and learned Lord said, he has responsibility for civil procedure. He also has considerable responsibilities under the Debtors (Scotland) Act 1987. It is appropriate that fully paid Law Officers should have responsibility there. He also has responsibilities under the Nurses, Midwives and Health Visitors Act 1997.

I am not against the Scottish Law Officers having executive functions of a non-political nature. My concern is as regards the provisions of Clause 48 which may make it possible, however unlikely, for more political responsibilities to be handed over in a situation where, as the noble and learned Lord said, it would be for the Law Officers to give advice which he is optimistic would be followed in accordance with the conventions applying at Westminster.

This is not an appropriate matter to press to a Division at this stage of the evening. However, I hope that over the Recess the Government will reflect on whether it may be possible to work out some means of establishing greater independence not just in the prosecutorial functions but also the other functions of the Lord Advocate. As the noble Lord, Lord Thomas, indicated, it is important that everyone is clear about the role of the Law Officers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No.255B:

Page 19, line 5, at end insert—

("( ) The Solicitor General for Scotland shall be the law officer to the Scottish Executive").

The noble and learned Lord said: This touches on another matter which I consider to be of importance, although I fully accept at the outset that it was dealt with in the White Paper and formed part of the Government's proposals when the White Paper was placed before the people of Scotland prior to the referendum.

The purpose of the amendments is to retain the Lord Advocate as a member of the United Kingdom government and to provide that the Solicitor-General for Scotland should be the Law Officer to the Scottish executive. Those amendments are Amendments Nos. 255B, 255P, 255Q, 255R and 255S. Amendment No. 257A is slightly different and seeks to provide that the Lord Advocate should maintain a separate office, part of the theme I argued for in the previous group of amendments.

There are a number of reasons for the view I hold, which I shall endeavour to place briefly before noble Lords. The principal function of the Lord Advocate is to act as the independent public prosecutor in Scotland. He is in charge of the investigation of sudden deaths and in complete control of the prosecution system by which those accused of criminal conduct are brought before the courts. He has certain statutory powers to direct the police in their investigations, and his staff, the procurators fiscal and advocate deputes from time to time give instructions in individual cases.

In exercising that function the Lord Advocate and those who work under him act in the public interest. As I have observed, that public interest is not limited to the interests of the people who live in Scotland, nor is it limited to devolved matters.

Assessing the public interest requires taking account of much wider considerations, not least the national issues which arise relating to the misuse of dangerous drugs, firearms, health and safety at work considerations, et cetera. As we were scrutinising Schedule 5 to the Bill it would have been abundantly obvious that in those fields the legislative power is not being devolved because they are all reserved matters. Many of the offences currently prosecuted in Scotland in the name of the Lord Advocate are for breaches of legislation made in this Parliament, and that will remain the position when the Scottish parliament comes into existence.

In considering this issue I thought it would be helpful to look back at what happened in 1978 when the Scotland Bill was promoted by the Labour government of the day. The decision reached by the constitutional team, which formed part of the government and which included John Smith, who was a very successful Queen's Counsel in Scotland as well as being a highly respected politician, the then Solicitor-General for Scotland, the noble and learned Lord, Lord McCluskey, and the Lord Chancellor of the day who took part in certain of the debates in the Bill, was that the Lord Advocate's position should not be devolved.

It is interesting to see what was said in the White Paper at that time. At paragraph 144 the separate character of Scottish law and the Scottish legal system was described, being especially recognised when the Union between Scotland and England came into being. It was said that in this distinctively Scottish field the government believed that extensive evolution was particularly appropriate. There were paragraphs dealing with Scottish private law and civil law and the role of the Law Commission. In paragraph 147 the White Paper dealt with the question of the criminal law. The Scottish administration and the devolved executive would also be given responsibility for the general criminal law including the right to create new offences, to redefine or abolish existing offences, to determine penalties and to regulate the treatment of offenders. However, it went on to point out certain exceptions, such as the misuse of drugs, explosives, firearms and so forth.

The important paragraph states: The enforcement of the criminal law through the police and the prosecution system, which in Scotland is not in any way under the control of the police, is part of the responsibility of the Government for the maintenance of law and order and the security of the state and will extend to offences within both devolved and other fields. It would not be right that responsibility for law enforcement should rest with members of an administration not directly answerable to Parliament". I have to say that that summarises my concern most succinctly. It would not be right that responsibility for law enforcement should rest with members of an administration not directly answerable to Parliament.

Once devolution comes along and if the Lord Advocate becomes part of the Scottish executive, he will no longer be answerable to this Parliament for prosecutions which may be of concern to Members of Parliament for a variety of reasons; whether it be because the prosecution involves a major national interest or whether it be because it involves the prosecution of someone who resides in England but is prosecuted in Scotland and whose MP is in England and who has no representative in Scotland. For whatever reason, from time to time cases will arise in respect of which Members of your Lordships' House and of another place will wish to question why a prosecution took place. They will no longer have that right. I believe, as the authors of the 1978 White Paper believed, that that would not be correct.

Although it is a lesser point, I also believe that it is important that the Lord Advocate, because he has to prosecute for contraventions of legislation passed by this Parliament, should have direct access to this Parliament and be a Member of the Government who have the responsibility of putting legislation through this Parliament. That right will be lost, even if it is possible, as may well be the case, that future Lords Advocate, if they were to be devolved, could be appointed Members of your Lordships' House.

Finally, and again it is a lesser consideration, it would no longer be possible for the Lord Advocate to represent the United Kingdom whether in the courts of Luxembourg or Strasbourg or at any other international and Commonwealth conference which over the years Lords Advocate have attended.

I fully accept that there will be an Advocate General who will do so, according to the Government's proposals. I fully accept it is possible that he will be able to discharge some of the roles. But he will not be capable of being answerable to this Parliament for the prosecution of crime. I believe that that is a serious flaw in the Government's proposals. I beg to move.

Lord Rodger of Earlsferry

I wish to ask the noble and learned Lord the Lord Advocate about the point raised by the noble and learned Lord, Lord Mackay of Drumadoon. Does he anticipate that the Lord Advocate, in carrying out his role as head of the prosecution service and dealing with a crime under, say, the Misuse of Drugs Act, would have to adopt the public policy interest as defined in the United Kingdom legislation, even though he was not a member of the United Kingdom executive? In other words, would he have to take the view that it was public policy as laid down in that statute rather than, for example, the view which he as a member of the Scottish executive might take on the issue of drugs, which would have a bearing on whether in any particular case a prosecution would be mounted?

10.45 p.m.

Baroness Carnegy of Lour

I have one small point to make from a completely lay point of view. Scotland is a very small place. When the Lord Advocate is appointed, the first thing that will happen is that the elected members of the Scottish parliament will have to approve his appointment before the first minister can make a recommendation to Her Majesty. I believe that is right.

There may be a squabble. We do not quite know how the whole thing will work out. The public will know that there has been a squabble. At the moment, they respect the system. They do not question it at all. They never wonder whether Her Majesty has appointed the right Lord Advocate. Other lawyers may, but members of the public do not. It seems to me that his status will be very different as a result of this change. That is part of the problem which my noble and learned friend raises.

I look at this matter as I believe the public will see it. They would discover, if there was a problem, that the Lord Advocate can be dismissed by the first minister and that that has nothing whatever to do with this Parliament. It will be very different. The Lord Advocate will be a much more local figure in the public view. Consequently, he will be more vulnerable to criticism. That is very important. I hope that the Government have thought this out carefully.

Lord Hardie

I assure the noble Baroness, Lady Carnegy, that we have thought carefully about this. It follows on, to some extent, from the point made by the noble and learned Lord, Lord Mackay of Drumadoon, about the position in the 1970s when one was speaking about a Scottish assembly as opposed to a Scottish parliament.

Since the 1970s, a lot has changed. There has been the Scottish Constitutional Convention which deliberated long and hard on the question of the devolution of the legal system. I am sure that the noble Baroness and noble Lords will accept that one of the peculiarities and specialties of Scotland is its independent and separate legal system. Therefore, if one is devolving power to a Scottish parliament, one of the particular functions that is an obvious candidate for consideration is the legal system.

As I say, that was considered at great length and in some considerable detail by the constitutional convention. The decision was that it should be devolved. Thereafter, the Government considered that matter and accepted that. That was reflected in the White Paper, which was the basis for the referendum.

The logic of the position adopted by the noble and learned Lord is that the legal system and, in particular, the peculiarly Scottish criminal legal system, should not be devolved. That is the logic, and can only be the logic, of his position because the Lord Advocate is head of the prosecution system. If you retain or reserve the Lord Advocate in London as a Law Officer in the United Kingdom Parliament, it is inconsistent with devolving the prosecution system, unless you are going to say that the whole system should change and that the Lord Advocate, after several centuries, should no longer be head of the prosecution system and that that should be passed, perhaps, to the Solicitor-General for Scotland.

But there is another flaw in the noble and learned Lord's approach. He is seeking to separate the Lord Advocate and the Solicitor-General, leaving one in London with the United Kingdom and one in Scotland with the Scottish parliament. But that just will not do. As the noble and learned Lord will be aware, having held the office of Lord Advocate, the Law Officers Act 1944 provides that the Solicitor-General will be in a position and is empowered to discharge any functions of the Lord Advocate where the office of the Lord Advocate is vacant; or where the Lord Advocate is unable to act for any reason; or where the Lord Advocate authorises him to act on his behalf in a particular case. So, by splitting the two Law Officers, is the noble and learned Lord suggesting that the provisions of the 1944 Act should be cast aside? If that is the position, it will have very serious implications for the prosecution service in Scotland. I give way to the noble and learned Lord.

Lord Mackay of Drumadoon

I am much obliged. In moving the amendment I was proceeding on the assumption that, if the Committee was with me in principle, the Government would follow the normal convention of carrying out any necessary amendments to implement the wish of this Chamber. I fully accept that one could trawl through various Acts of Parliament and no doubt find provisions which might, on one view, be inconsistent with the principal amendment that I seek to make. I do not for a minute demur to the suggestion that the Scottish parliament will need Law Officers. However, I seek to raise the simple question as to why—and, indeed, it is suggested that my reasoning in this respect is flawed and my logic incorrect—if it was considered to be sensible in 1978, it is illogical, flawed and, quite frankly, a nonsense in 1998. I find that difficult to follow. That is the issue which I hope the noble and learned Lord will address.

Lord Hardie

I thought that I had done so. The position is that 20 years have passed since that time and the intention then was to have an assembly. However, that did not work out and it did not come into being. It may be that the noble and learned Lord and others regret that fact and wish to turn back the clock, but that is not possible. Since then we have had the constitutional convention and there has been much thought about the future governance of Scotland. It has been decided that the proper form of devolution, which the Government have adopted, is to devolve the criminal justice and the civil justice systems. The logical consequence of that is that the Lord Advocate will be devolved.

If one is arguing for the retention of the Lord Advocate in London, then the logic behind that is that one is arguing for not devolving the criminal prosecution service. The reference by the noble and learned Lord back to the 1970s and the original arrangements of 20 years ago, where the Lord Advocate and the criminal prosecution service were not being devolved, suggests to me that what he really wants is the retention or the reservation of the criminal justice system. In my respectful submission, that fails to recognise the fact that it is sensible to devolve to Scotland the system of law and the system of prosecution, both of which are peculiar to Scotland.

Perhaps I may attempt to answer the point made by the noble and learned Lord, Lord Rodger. The Lord Advocate will, of course, have to take account of legislation, whether it is passed by the Scottish parliament or by the UK Parliament, and will have to decide whether it is appropriate to prosecute under it. As the noble and learned Lord will be aware, the simple fact that a piece of legislation creates an offence does not automatically mean that prosecution follows in every case. The Lord Advocate of the day and local fiscals exercise discretion and operate certain policies in relation to what may be considered to be less serious breaches of the legislation. The policy of the United Kingdom Parliament, in creating an offence, will be an overlay of the policy of the Lord Advocate himself in determining whether to prosecute.

Lord Rodger of Earlsferry

I accept, as the noble and learned Lord would readily understand, that anyone who has held the office knows that in the case of minor breaches or breaches involving young people, particular factors come into account. Leaving all these things aside, is it the position that the Lord Advocate would be bound by the public policy, as stated by the United Kingdom Parliament, for example in the case of drugs, in precisely the same way as he would be bound by the policy he has expressed in an act of the Scottish parliament in some devolved matter giving rise to a criminal offence? That is the issue which I am seeking to identify, leaving aside the particular factors which might of course apply in any given case.

Lord Hardie

The short answer to that is yes. The question that I should like to propose to the House is why should noble Lords go against what was decided in the referendum which followed upon the White Paper, where it was quite clear that the question of the criminal justice system would be devolved and that the law officers would also be devolved?

It is flattering to think that the noble and learned Lord wishes to retain me in London. I am flattered by the obvious affection in which he holds me. I regret that the legislation is such that, if I am fortunate enough to be appointed Lord Advocate, I would not remain in London, although I would hope to visit this Chamber on occasions.

So far as concerns Amendment No. 257A, I am not sure whether the noble and learned Lord spoke to that. The position there is that this amendment is unnecessary. The Lord Advocate will remain responsible for the appointment of staff within his office—namely, the particular legal staff that form the procurators fiscal—and would have a say in the appointment of senior members of the Civil Service serving in his staff.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord for explaining the position. If he is devolved, I know that he will be welcomed back in this Chamber, although, like the rest of us, he will be on more modest pay and rations than he currently enjoys. He will also be in the fortunate position of not having to stand at the Dispatch Box and answer questions which, from time to time, Government Ministers find difficulty with.

I am not entirely convinced that a great deal has changed over the last 20 years. The office of Lord Advocate goes back for many centuries. To suggest that there has been such a sea change in thinking over the last 20 years or so is not a convincing argument. Equally. I am not convinced that the role of the Scottish constitutional convention in this matter is of crucial importance. I may be wrong, but I was not aware of the convention carrying out detailed consultation with those who were actively involved in the criminal justice system. Jim Wallace, who is of course a Queen's Counsel, was an active member. I am not suggesting that there were not others but I have some doubts as to whether this important issue was as fully thrashed out as it might have been to give the decision of the convention, as it is described, quite the significance that the Government appear to have accorded to it.

I acknowledge, however, as I did at the outset of my remarks, that this was in the manifesto. For that reason, I do not think it would be constitutionally appropriate for me to seek the opinion of the Committee. But I have to say, quite frankly, on my own behalf, that long before I read the 1978 White Paper I considered the decision to be wrong. I am reinforced in that conclusion by the views which are set out there. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 255C:

Page 19, line 5, at end insert—

("( ) The Parliament may change the terms "Scottish Executive" and "First Minister" to such other terms as it considers appropriate.").

The noble Lord said: In this amendment we are getting away from the heavy water of legal matters to rather simpler issues which I think I can deal with quickly. I hope that I shall receive a positive reply from the Minister, who will accept my amendment without hesitation! The Committee will recall that we discussed the, in my view, rather odd names that have been selected for the principal people in the Scottish parliament. The "top guy" is to be called the presiding officer and the "top political guy"—if I may call him that—is to be called the first minister. The government, so to speak, is to be called the Scottish executive. As always, when I suggested we might make the names more user friendly, I was chastised by the Minister, who said these were matters for the Scottish parliament. However, in this case I do not think I was told that. I should have been told that if the Government were being logical as regards their usual arguments; namely, that whenever we propose any change to Standing Orders or to anything else we are told that we should not attempt that here and that we should trust the new parliament. That is exactly what my amendment proposes to do.

In case the Committee thinks this is not a sensible amendment, I should say that I do not think the term "first minister" will be accepted, any more than the title "presiding officer". At the risk of a little laughter at my expense, I have mentioned another title created by government in the mid '80s which was not accepted for long either. However, I shall not let that title cross my lips this evening. I draw the Committee's attention to a Children in Scotland factsheet No. 41, which I read with my usual interest. I could not avoid a double-take when I read the following paragraph describing the Scottish parliament, Members of the Scottish Parliament will be elected by general election every four years. The parliament will have a Presiding Officer (the Speaker), Ministers, a Clerk and a First Minister (effectively the Scottish Prime Minister)". The simple fact of the matter is that whatever this Chamber decides, the popular press—I am not sure whether you call the other lot the unpopular press—and the heavyweight press, as it were, will use these shorthand titles which people understand. I have been round this course before. My amendment does not state that the first minister should be called the premier or the prime minister. It does not state that the Scottish executive should be called the government of Scotland or anything like that. It states simply that the parliament should be able to change the terms to any other terms it thinks appropriate.

Let us start off with what the Government want in the Bill, as I have learnt that what the Government want they will jolly well have, like spoilt children. So let the Government have what they want, but let us give the parliament—in the words of the noble Baroness, Lady Ramsay of Cartvale—the power to change that, so that we stand by what we believe to be the good sense of the parliament and do not second guess what titles the parliament or the people concerned will be given. It seems to me this is an amendment the Government ought to accept to give the parliament the power to make changes to these titles as it thinks fit. If it thinks what we have handed down from this Parliament is appropriate, it will adopt those terms. Let us trust the parliament as Ministers here have said. I beg to move.

Lord Steel of Aikwood

My noble friends and I strongly support this amendment. It is akin to my Amendment No. 256, which we have already debated but to which we shall return in the running order of the Bill.

Not only do I agree with the noble Lord, Lord Mackay of Ardbrecknish, that these words will not survive; they are thought to be rather ridiculous. To me, a presiding officer is a person sitting at my village polling station, and I know of no other use for the phrase. I could go on, but do not want to be repetitive.

I wish to make one important point. I distinctly recall that, when the White Paper was published and presented in the other place, the Secretary of State for Scotland made it clear that these names were not set in stone and that they were simply there as handy guidance since some words had to written into the Bill. I hope that that will be the attitude of the Government. What a splendid relief it would be to us all if, just occasionally, a Minister would come to the Dispatch Box and say, "You have a point, we'll accept it. Let us move on to the next subject".

Lord Renton

I support the amendment moved by my noble friend. Many years ago, as an Under-Secretary at the Home Office, I had the responsibility of maintaining liaison with the "government of Northern Ireland" as it was called. It was not called an "executive"; it was called a "government". The head of that government was known as the Premier.

It is only right that we should have some flexibility in this matter to enable the Scottish parliament/government in years to come to choose those expressions that it thinks most appropriate. The amendment deserves support.

Baroness Ramsay of Cartvale

The amendment would allow the Scottish parliament to change the titles of various officers in the parliament and of the executive. It represents a course that we have been over before in Committee, rather thoroughly as I remember it, on one of the early days which have all merged into one in a haze in my mind at this stage. We went into the details at some length.

I am afraid that I shall be consistent, in that I can only repeat my earlier remarks. I appreciate the noble Lord's arguments, which have not changed since our earlier discussions on the subject. I give way to the noble Lord.

Lord Mackay of Ardbrecknish

I am grateful to the noble Baroness. Before she goes on to develop this argument, I must remind her that my previous amendment stated that "First Minister" should become "Premier". This amendment does not say that; it says that the term should remain the same, but that the parliament should be allowed to change it if it wishes. It is quite a different argument. I hope that we are not to hear a repeat of the previous argument advanced by the Government.

Baroness Ramsay of Cartvale

I am grateful to the noble Lord for pointing that out. We were aware of it. He could not possibly be moving the same amendment as he proposed earlier. The principle is the same. While we appreciate the noble Lord's argument that the parliament should be able to decide for itself the titles of its executive, its Ministers and its key officers, we believe that the certainty and consistency achieved by prescribing the titles from the outset is essential. The prescription is necessary to maintain a consistency in references throughout the Bill and in future legislation, as well as in other formal documents through successive sessions of the parliament.

We are well aware of the speculation as to other titles that might be used. Incidentally, I did not see the significance that the noble Lord, Lord Mackay of Ardbrecknish, seemed to give to a factsheet for children explaining that the first minister in a Scottish parliament would be what they knew as a Prime Minister in the Westminster Parliament. That does not seem any great argument for changing the title of first minister.

The titles used in the Bill are clear and unambiguous and suit their purpose. "First Minister" describes the role and avoids confusion with office holders in Westminster—a not unimportant point which noble Lords opposite never seem to accept. It is consistent with the Northern Ireland Assembly. The noble Lord, Lord Renton, mentioned Northern Ireland, but I must point out that that assembly here and now has a First Minister. That seems to have been readily accepted across the media in respect of Northern Ireland, and I do not see why it should be different when it comes to Scotland.

The Welsh assembly is to have a first secretary. Generally, the titles were used throughout the White Paper and therefore they were the titles that the people of Scotland became familiar with during the referendum campaign. During that campaign, of which I was very much a part, as were some other Members of your Lordships' House, those titles were used all the time. I do not think noble Lords opposite are suggesting that the referendum meant that everything to do with the parliament did not have a good airing in Scotland. As the noble Lord, Lord Mackay of Ardbrecknish, was good enough to mention more than once, the results were a resounding victory of "Yes" to both questions.

The titles have been carefully chosen to avoid confusion with the Westminster Parliament and Whitehall Ministers. No doubt people will develop their own way of referring to them, and I do not want to speculate on that. Different titles might be used in the day-to-day operation of the parliament. For example, people might want for working purposes to add to the titles of Scottish ministers so as to distinguish them according to their portfolios. That would mean people would refer to a particular Scottish minister as "the Scottish minister for health", "the Scottish health minister", "the Scottish education minister" and so on. But the titles would have no legal status. By prescribing simple, straightforward titles, we hope to ensure that there is no confusion between officers and positions so that everyone knows where they stand and what their responsibilities are. I ask noble Lords to withdraw their amendment.

Lord Renton

I hope that the noble Baroness will allow me to intervene. She said that in Northern Ireland the head of the government was called "the First Minister". Did I mishear her? I have always understood that it was the practice that first Lord Brookeborough and then his successors were always referred to as "the Premier".

Baroness Ramsay of Cartvale

I am not talking about the past; I am talking about the present. The Northern Ireland Assembly will have a First Minister.

Baroness Carnegy of Lour

I have to disillusion the noble Baroness. I know she does not have much time to go to Scotland at the moment. We all understand that. But there is enormous confusion about who these people are. The fact that the referendum was a resounding "Yes" has not sorted out in people's minds who the first minister is and who is the presiding officer. There is much confusion; people do not know what is what. Some laugh about it when you explain. So the die is not cast and I do not believe the Minister should use that argument, whatever other argument she uses.

Baroness Ramsay of Cartvale

I am afraid that the noble Baroness will have to allow me to choose which arguments I use. As for my presence in Scotland, since the referendum I have been much more in Scotland than in London. I hope other Members of your Lordships' House can be a witness to the regularity of my visits to and from London.

I do not want to get into a competition about how many hours one clocks up in Scotland or England. It is not relevant. However, I have no reservations about believing that I am just as much in touch with the people of Scotland as any other Member of your Lordships' House.

Lord Steel of Aikwood

Perhaps I may press the noble Baroness as to what she meant when she said that, although the titles would not have statutory effect, parliament could decide to call those in the parliament what it liked. That would square with what the Secretary of State said in answer to questions in the House at the time the White Paper was published.

Perhaps we may be clear. The Minister is not saying that anything in the Bill prevents the Scottish parliament deciding that its first minister should be called the premier or that the presiding officer should be called the speaker. That would square with the undertaking given by the Secretary of State at the time of the publication of the White Paper.

11.15 p.m.

Baroness Ramsay of Cartvale

I shall make two points. First, that is not what I said. I said that what people might develop as their own way of referring to the office holders was something on which I would not speculate. They may well decide to refer to people in different ways. I was not talking about the parliament changing the title.

Secondly, what my right honourable friend the Secretary of State was indicating when he spoke was that at the time this was still going to be looked at. We have looked at it. This is the Bill; not the White Paper. This is what the Government have decided is the best way forward on these titles. I made that very clear earlier in Committee. I am being consistent. It is still the view of the Government. There is no contradiction in what was said by my right honourable friend the Secretary of State then and there is no other meaning to what I said just now.

Lord Steel of Aikwood

Is the noble Baroness saying that this Bill, if passed into legislation in its present form, will prevent the Scottish parliament from choosing better names than it contains? If that is what she is saying, we shall have to come back to this matter at Report stage.

Baroness Ramsay of Cartvale

I am saying that in statute these are the titles.

Lord Clyde

On another occasion we passed an amendment to Schedule 4 which provides, among other things, that the Scottish parliament may amend, any enactment … by changing the name of

  1. (a) any court or tribunal or any judge, chairman or officer of a court or tribunal,
  2. 1469
  3. (b) any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration".
What is the consistency in allowing the alteration of names of judges—as it is delightfully put—but not the names of senior Ministers?

Baroness Ramsay of Cartvale

In fact, to put it bluntly and in layman's terms, because they are different jobs.

Lord Mackay of Ardbrecknish

The real answer to the noble and learned Lord, Lord Clyde, is that there is no answer to that. The noble Baroness ought sometimes to score out the word "resist", because it sounded as though we were attacking one of the pillars of the whole devolutionary settlement, such was the vigour of her resistance.

To be fair to the noble Baroness, Lady Ramsay, I confirm to my noble friend Lady Carnegy of Lour that the Minister does indeed spend most weekends in Scotland. I know this—I suppose I had better be open about it—because I meet her on the aeroplane, though nowhere else.

In relation to my quote from the Children in Scotland fact sheet, that is a serious organisation. It is in fact the Scottish all-party parliamentary group for children whose convenor is Maria Fyfe MP. So it was not a kind of child's guide to the Scottish parliament; it was a serious guide for people—grown-ups—who are interested in the family policy of the Scottish parliament. I drew the attention of the Committee to that paragraph because it is an indication of what inevitably is going to happen.

I must say that I felt that the resistance of the noble Baroness was about the worst piece of resistance we have seen. I cannot believe that the instructions from on high are such that they will not allow any give and take—as the noble Lord, Lord Steel of Aikwood, said—on a subject which seems to be not at all peripheral to the whole project of devolution. My suspicions are that it has got "Downing Street" stamped all over it and there must be nobody else in the United Kingdom who is called "Prime Minister" or anything vaguely like that. It is amazing how other countries in the world with federal constitutions are able to cope with having people of the same name. I am so appalled at that answer that I shall seek the opinion of the Committee.

11.18 p.m.

On Question, Whether the said amendment (No. 255C) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 48.

Division No. 3
Balfour, E. Clyde, L.
Burnham, L. [Teller] Cranborne, V.
Carnegy of Lour, B. Cross, V.
Chesham, L. Dixon-Smith, L.
Ellenborough, L. Minto, E.
HolmPatrick, L. Montrose, D.
Home, E. Mountevans, L.
Hooper, B. Northesk, E.
Kintore, E. Renton, L.
Linklater of Butterstone, B. Selkirk of Douglas, L.
Lyell, L. Sempill, L.
Steel of Aikwood, L.
Mackay of Ardbrecknish, L. Strange, B.
Mackay of Drumadoon, L. Strathclyde, L. [Teller]
Mackie of Benshie, L. Thomas of Gresford, L.
Mar and Kellie, E. Thurso, V.
Alli, L. Howie of Troon, L.
Archer of Sandwell, L. Hoyle, L.
Bassam of Brighton, L. Hughes of Woodside, L.
Burlison, L. Hunt of Kings Heath, L.
Carter, L. [Teller] Kirkhill, L.
Clinton-Davis, L. McIntosh of Haringey, L. [Teller]
Cocks of Hartcliffe, L. Monkswell, L.
Currie of Marylebone, L. Montague of Oxford, L.
David, B. Pitkeathley, B.
Davies of Coity, L. Ponsonby of Shulbrede, L.
Dean of Thornton-le-Fylde, B. Puttnam, L.
Desai, L. Ramsay of Cartvale, B.
Dubs, L. Rea, L.
Elis-Thomas, L. Rendell of Babergh, B.
Ewing of Kirkford, L. Sewel, L.
Farrington of Ribbleton, B. Simon of Highbury, L.
Goudie, B. Simpson of Dunkeld, L.
Gould of Potternewton, B. Smith of Gilmorehill, B.
Gregson, L. Stone of Blackheath, L.
Grenfell, L. Symons of Vernham Dean, B.
Hacking, L. Thornton, B.
Hardie, L. Watson of Invergowrie, L.
Hardy of Wath, L. Whitty, L.
Hilton of Eggardon, B. Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

11.26 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 255D:

Page 19, line 5, at end insert—

("( ) No Minister of the Crown may be appointed as a Scottish Minister or as a Scottish Law Officer.").

The noble Lord said: Those Members of the Committee, such as the noble Lord, Lord Thomas of Gresford, who were keen on the Welsh Bill will readily recognise this amendment. It deals with the subject of the interrelationship between this parliament and the Scottish parliament. I am one of those who think that if people wish, and if the electorate is willing, they should be allowed to be Members of this Parliament and of the Scottish parliament, of this Parliament and of the European Parliament, and of the European Parliament and of the Scottish parliament. One could throw local government into the combination as well. It seems to work reasonably well on the Continent and I do not see why it should not work here.

However, there is a difference when it comes to people holding responsible office in either this Parliament or the Scottish parliament. This amendment deals with the question of whether somebody could be a Minister of the Crown here at Westminster and a minister or a law officer in a Scottish parliament. That assumes that that person was elected to both bodies.

We have had some problem with this question in the Welsh Bill because Mr. Ron Davies actually and actively thinks that he can be both Secretary of State and first minister of the Welsh assembly. The position is different in Scotland. Mr. Donald Dewar thought that he could be both—that is, for about 10 minutes. He then realised that the position was untenable and indicated quickly that, as he wished to stand for the Scottish parliament and wished to be considered as first minister, he would not keep the office of Secretary of State in those circumstances. I am not too sure whether he said that he would resign the office of Secretary of State before he stood for the Scottish parliament. I rather suspect that that is, indeed, what he did say, but in any case he made it clear, as far as I can recall from the press reports, that he did not think that it was consistent to be Secretary of State for Scotland and first minister.

This has been debated in some detail in the course of the Welsh Bill and I believe that it will be debated in your Lordships' House again tomorrow when the Welsh Bill makes a reappearance here along with the Commons amendments. Last week, on 22nd July, Mr. Peter Hain, one of the Ministers at the Welsh Office, was discussing this and said at col. 1181 of Commons Hansard: Nobody seriously argues that the same person can be the Secretary of State for Wales and Assembly First Secretary in perpetuity. It would be politically unacceptable and constitutionally undesirable". To be fair to Mr. Hain, he believes that for a short period to begin with it may be possible but that in the long term it is not. Mr. Hain is nearly right, by which I mean that he should not qualify his comment; namely, it is not possible in the short term or long term. How can someone who is a Minister along the corridor or here—perhaps the noble Lord, Lord Sewel, not necessarily the Secretary of State—be elected to the Scottish parliament and be a Minister in that parliament?

I ask those noble Lords who have had ministerial office to remember the guidance for Ministers, in particular about collective responsibility. At nine o'clock this evening the noble Lord, Lord Sewel, in replying to another debate, gave a certain answer. I wrote it down and might not have recorded it exactly. He said that UK Ministers are accountable to the UK Parliament and Scottish Ministers will be accountable to the Scottish parliament. How can the same person be accountable to both? They are different parliaments and governments. Such a person cannot be part of the collective responsibility of one parliament and part of the collective responsibility of another. He will break the collective responsibility of one or the other. Even if it is the same party in government—frankly, there is some doubt about that on the basis of Scottish opinion polls—there will be times when inevitably there will be differences in emphasis or priorities.

There is no point in devolution if the Scottish parliament and executive always adopt the same policies as the UK Government. Obviously, those differences will be greater if there is a coalition government in the Scottish parliament, as is perhaps inevitable, and a single party government in Westminster, even if there is an overlap of parties. The differences will be greater still if there are governments of different parties here and in Scotland. If there were a coalition in Scotland one could envisage that a minor partner in it might be the main party in the House of Commons down the corridor. Therefore, if a Minister in the one could be a Minister in the other the position would be almost impossible.

I remind the noble Lord, Lord Sewel—if it is he who is to reply—of his answer at nine o'clock this evening. I do not believe that, as Mr. Hain said the other day, it is possible to be a Minister in both parliaments, aside from the fact that it appears to be taking greed for ministerial office to the nth degree. I beg to move.

11.30 p.m.

Lord Sewel

It is quite clear that the concept of a person being a Minister in the Scottish parliament while also being a Minister in the UK Parliament raises some constitutional niceties. The question is whether we need to deal with that expressly in the Bill or leave it to the Prime Minister of the United Kingdom in the first instance and the First Minister in Scotland to decide if there are any quite exceptional circumstances in which perhaps for a short period there is merit in one person being a Minister in both governments.

I fully recognise the concept of collective responsibility and how that concept strains the constitutional convention. But it is a constitutional convention. Constitutional conventions have the ability to evolve, change and adapt to circumstances at the time. It is quite possible that this particular constitutional convention will be capable of an evolution and an adaptation in the way that makes an accommodation to the particular circumstance to which the noble Lord is referring.

There may be a case. Let us take an example. Let us look forward, say, 25 years. I use 25 years because by that time we may have a Conservative government, if things go badly wrong; there may be a Conservative government here at Westminster and, who knows, a Conservative administration in Holyrood. Let us suppose that there has been a long-running crisis on the common fisheries policy and there is one man in Britain who everybody clearly sees and identifies as the man who can actually square the circle and deliver a proper settlement, not only for Scotland but for the United Kingdom. That man is, of course, Lord Mackay of Ardbrecknish. Lord Mackay steps forward for a short period of time to deal with this major crisis, this major disrupting influence in the politics of Europe and in the politics of the United Kingdom; the Lord Mackay of Ardbrecknish carries the heavy burden. As Cincinnatus was called from the plough, Lord Mackay is called from the salmon, and he delivers this signal service to his fellow countrymen by being, for that short period, able to represent the interests of the Scottish administration and the interests of the United Kingdom Government.

Of course, that is very far fetched, but there is an element of truth in the situation that could arise. It would arise only in exceptional circumstances, only for a very limited period of time when, in the initial judgment of the Prime Minister of the United Kingdom and the First Minister in Scotland one person could do a particular job in very exceptional circumstances. At this stage I would not like to rule that possibility out. I believe that it is something that is extremely unlikely, but we do not have to rule it out by putting the prohibition in the Bill.

Lord Renton

Having listened very carefully to what the noble Lord has said, I wonder whether he can clarify his argument by giving us a single example of any devolved or regional government anywhere in the world in which a minister of the central government was also a minister of the devolved or regional government. Is there the slightest precedent anywhere?

Lord Sewel

If my memory serves me correctly, there have been cases in the French regions where people—I do not know whether the term "minister" is used, but I believe so—where ministers have been used while serving as ministers in the central government. I am not absolutely certain on that, and I shall try to make that clear and shall write to the noble Lord.

Lord Renton

With the greatest respect, in France, which I heard the noble Lord mention, the only example that one can find is not really this example. There has been more than one case of a Prime Minister of France having been the mayor of one of the cities, but that is quite different.

Lord Mackay of Ardbrecknish

My noble friend Lord Renton is right. The only merit in the noble and learned Lord's answer is that he at least tried to cover the total inadequacy of the answer with some amusement and in that way hoped to divert the Committee's attention from the total vacuum at the centre of the ministerial argument.

I think that the Minister failed to convince any Member of the Committee. I suspect that he even failed to convince himself. My noble and learned friend Lord Mackay of Drumadoon said that in 25 years I should probably have to be called from the grave. I thought that that was rather unkind, especially with the excellent example of my noble friend Lord Renton who at this deep hour of the night, at long past 85 years, is still here and asking penetrating questions. Frankly, on this amendment my noble friend may agree that he did not have to be very penetrating to get through the Government's guard.

That was perhaps the Minister's poorest argument. When he awakens in the morning he might reflect on his worst argument in the Bill. I suspect that this is it. If he and his officials cannot conjure up a better argument than that, they had better bring forward an amendment of their own at Report stage to ensure that we cannot have this double ministerial office. If they do not do so, I shall return to the matter at a time of day when I might have a better chance of winning. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255DA not moved.]

Clause 41 agreed to.

Clause 42 [The First Minister]:

Lord Mackay of Drumadoon moved Amendment No. 255E:

Page 19, line 15, at end insert ("or persons").

The noble and learned Lord said: Amendments Nos. 255E and 255F are two small amendments to Clause 42. They deal with the situation where there is a vacancy in the office of first minister. Subsection (4) provides that in such situations the functions exercisable by him shall be exercisable by a person designated by the presiding officer.

Such a situation could arise after the parliament had been dissolved and voters and potential members were awaiting the next general election. It could arise where parliament for whatever reason had failed to agree on a first minister and an extraordinary general election required to be called. In circumstances far less remote than those we have been discussing, it might be desirable to have more than one person involved in the discharge of the first minister's duties. For example, if the only way in which an administration could be formed were by some form of coalition, the presiding officer might take the view that it would be sensible to involve members of political parties who were standing for election to the parliament as the persons who should discharge these functions.

I hope that this will be accepted as a constructive suggestion. I beg to move.

Lord Hardie

I accept that the intention underlying the amendment is constructive but I regret to say that I do not think that the amendments are appropriate.

With Amendment No. 255E, the noble and learned Lord is attempting to provide that the presiding officer is able to appoint more than one person to carry out the role of the first minister.

The provisions in Clause 42 are intended to ensure that there is always someone able to perform the functions of the first minister and act as head of the administration. In practice, it is expected that each first minister will hold office until replaced by a successor. But there could be circumstances where the post falls vacant, for example on the death of a first minister, or where the first minister is unable to act temporarily. In that situation the presiding officer is authorised to designate someone.

However, it is a single office and we think that it would be inappropriate to enable more than one person to be designated to perform the duties of that office. If more than one person were designated, two or more people would come within the category of first minister; and how would it be decided who would do what in these circumstances?

With Amendment No. 255F the noble Lords would introduce yet more inappropriate words into the Bill. It is already quite clear that the person designated to act as first minister would be doing so in the capacity of a caretaker. It is not necessary to require the presiding officer to specify how long such arrangements will be in place, nor, on purely practical grounds, would it be reasonable to require him to do so. In the case of illness it would not be known how long the first minister might be incapacitated, and accordingly it would not be appropriate to fix a determinate period.

With that explanation I urge the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

I am disappointed that my suggestion has not been accepted, but it is clearly not a matter of any great importance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 255F not moved.

Clause 42 agreed to.

Clause 43 [Choice of the First Minister]:

The Earl of Mar and Kellie moved Amendment No. 255G:

Page 19, line 24, leave out ("If') and insert ("When").

The noble Earl said: In speaking to this amendment I speak also to Amendment No. 255H. Amendment No. 255G is a drafting amendment. Its purpose is to sharpen up the language of the opening sentence of Clause 43, which deals with the choice of the first minister.

I contend that the word "when" is more appropriate than "if'. The first sentence in Clause 43(1) gives the wrong impression. It is not a case of "if' in regard to the choice of a first minister after a general election, a death in office or some other event; it is a case of when one of these events has occurred.

Apart from the insertion of one other condition, that of mental ill health as in Amendment No. 255H, there are no other opportunities for a first minister to be chosen. The word "when" is therefore correct, that is, unless a first minister does not have to be chosen. I do not believe that that is an option open to the Scottish parliament.

The more substantive amendment, Amendment No. 255H, introduces a further example of when a first minister would have to be chosen. The amendment describes the situation where a first minister will stand down because of admission to hospital under the Mental Health (Scotland) Act 1984 or in the event of him or her becoming subject to a guardianship order or having a curator bonis appointed to supervise his or her affairs. These would clearly be very sad occurrences, but they could happen, for example after a bad road accident in which the injuries sustained rendered the first minister permanently and legally incapable.

There are two points to raise in this connection. The Mental Health Act 1983, an English Act, is not only a reserve matter within the Bill but the reservation ties members of the Scottish parliament and the presiding officer into Section 141 of that Act. How can this be? The Mental Health Act 1983 does not extend to Scotland. Surely a reservation should be made introducing an amendment to the Mental Health (Scotland) Act 1984. I hope that on Report the Government bring forward a suitable amendment to deal with that.

My second point relates to the urgent need for a Scottish Bill to modernise and overhaul the legislation relating to incapable adults. I believe that this should feature in the first session of the Scottish parliament—it is that important. When that incapable adults' legislation is passed by the Scottish parliament, it will be necessary to approach the Westminster Parliament to update Section 141 of the Mental Health Act 1983.

I believe that this issue is in need of amendment and further thought. How can this English Act run with any credibility in Scotland? I beg to move.

The Earl of Balfour

Although it would be extremely tragic, the first minister could have an accident. Provision was made in the Government of Wales Bill in case the first minister became incapable of doing his job properly. I was under the impression that the noble Lord, Lord Williams of Mostyn, intended to make a similar provision in the Scotland Bill.

It would be tragic, but it could happen. Will the Minister consider that point, because the Scotland Bill makes no such provision?

Lord Renton

I am most doubtful about these two amendments. The word "when" indicates that various events to be mentioned later are inevitable, but not all of them are inevitable. They may never occur. One may occur during the poll at a general election while the first minister is in office. Frankly, in this context, "when" and "if' are virtually synonymous and I do not see the need for the change.

As for adding to the Bill references to the first minister being in hospital for mental reasons, or becoming subject to a guardianship order, or having a curator bonis appointed, they are sad events and if any of them occurred the first minister would inevitably be required to resign. I believe that it is over-zealous of us to try to write it into the Bill.

Lord Sewel

Clearly, my efforts at defending the Government's position on the last but one amendment have been recognised and rewarded and I am left with the job of dealing with the mad first minister!

As regards Amendment No. 255G, I am at a loss to understand how the substitution of "if' with "when" leads to any greater precision. I am tempted to the view that if we explore that at any great length we might finish up falling under the auspices of Amendment No. 255H. I shall not detain the Committee any longer on that business. I do not understand the argument that in this context "when" is of greater precision than "if'. I do not see that at all. Furthermore, I do not believe that the Government need to accept Amendment No. 255H, which we consider inappropriate and unnecessary, partly for the reasons which the noble Lord, Lord Renton adduced.

The noble Earl argued that there is no provision in the Bill to take account of the incapacity of the first minister. That is not the case on a proper reading of the Bill. I suggest that the Bill makes more than adequate provision to deal with cases where the first minister is unable to act. For example, if at any time it appeared to the presiding officer that the first minister was unable to act for whatever reason, including mental illness, it would be open to him, under Clause 42(4) to designate an MSP to exercise the function of the first minister. That provision is sufficiently wide to enable the presiding officer to deal appropriately with every eventuality.

Should it become clear that the first minister's inability to carry out his function was not merely temporary, we should expect the first minister to resign, as the noble Lord, Lord Renton, indicated. But should he not resign and should it be a particularly grave mental illness, the Scottish parliament could effectively remove him and his executive through a vote of no confidence, which would have the effect of bringing about the resignation virtually automatically. In turn, that would lead to the appointment of a new first minister. That would be a fairly drastic turn of events but it would operate in a way which would allow as much dignity as possible to be maintained with the need for effectiveness. Therefore, I do not believe that these amendments are necessary and on that basis, I ask the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie

I do not wish to continue the argument about "if" and "when" except to say that I believe that "when" sounds more definite.

With regard to Amendment No. 255H, we have now established that the presiding officer may have to relieve the first minister of his command. That is always tricky because if you are wrong, you are guilty of whatever is the political equivalent of mutiny by relieving someone of his command when he did not deserve it. I shall say no more. I continue to hope that the Government will think further about the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255H not moved.]

Clause 43 agreed to.

Clause 44 [Ministers]:

Lord Mackay of Ardbrecknish moved Amendment No. 255J:

Page 20, line 4, leave out (", with the approval of Her Majesty,").

The noble Lord said: Perhaps I can offer the noble Lord, Lord Sewel, and the noble Earl, Lord Mar and Kellie, some advice on "if" and "when". If we think about finishing this Bill, it sometimes becomes not a matter of "when" but "if' we finish the Bill.

This group of amendments deals with the appointment of Ministers and junior Ministers in Clauses 44 and 46 respectively. The amendments address the same points in both clauses. If I pair the amendments, that may be the quickest way in which to probe and ask the Minister for his advice on a number of matters.

First, I deal with Amendments Nos. 255J and 255T. Both amendments deal with the words, with the approval of Her Majesty". Let us take just one of the clauses because they are mirror images of each other. Those words are in the very first line of Clause 44. When I became a member of the Privy Council and when I was elevated to the House of Lords, I was aware that Her Majesty's hand was somewhere in the background. When I became a junior Minister at the Scottish Office and even a Minister of State at the Department of Social Security, I was not aware of the approval of Her Majesty being sought or being granted. Therefore, I wonder whether we have similar arrangements here at Westminster other than for the great offices of Secretaries of State who, I know, must trot up to Buckingham Palace when they leave and take up office. I just wonder how that approval will be sought and how it will be indicated.

In the same vein, Amendments Nos. 255M and 255W relate to Clause 44(3)(a) and Clause 46(4)(a) respectively and deal with the words, shall hold office at Her Majesty's pleasure". But what exactly does that mean in practical terms? Amendments Nos. 255L and 255V deal respectively with subsection(2) of Clause 44 and subsection (3) of Clause 46 which say: The First Minister shall not seek Her Majesty's approval for any appointment … without the agreement of the Parliament". I wonder what the latter words— without the agreement of the Parliament"— actually mean. In other words, how is that to be achieved? Is there to be a vote on every appointment of a Minister or a junior Minister? That would be rather unusual. In this Parliament, if the Prime Minister appoints people and he has the approval of the House of Commons, everyone else follows in his wake, so to speak. If that were not the case, we would be having quite a few votes over the next few days given all the changes that have recently taken place. Indeed, we might be voting to keep some of the people who have gone and also voting to get rid of some of them who have not gone.

Amendments Nos. 255N and 255X seek to introduce some new words to the two clauses. For example, subsection (3)(c) of Clause 44 currently says that a Minister, may at any time resign and shall do so if the Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament". I understand that if the whole executive does not enjoy the confidence. But what if that applies to one Minister? My amendment would make the paragraph say that a Minister, may at any time resign and shall do so if the Parliament resolves that either he or the Scottish Executive no longer enjoys the confidence of the Parliament". It would deal with the situation where the parliament loses confidence in an individual Minister. I do not believe that this Chamber has ever become involved in such matters, but, in the other place, there is a Motion to reduce a Minister's salary, which is a vote of no confidence in that particular Minister.

Finally, I turn to Amendments Nos. 255K and 255U which deal with the number of Ministers to be appointed. In Clause 44, I suggest that we should have up to six Ministers, and in Clause 46 I suggest that we should have up to six junior Ministers. That makes a total of 12. Currently—at least this morning—there were six Ministers in all in the Scottish Office. I am not sure whether that total has been kept because my recollection is that there were only five Ministers in the Scottish Office before the last election. I suspect that the Government needed another one because of this Bill, so I make no complaint in that respect. It means that six Ministers are doing this work. Therefore, I think that I am being pretty generous when I limit the number of Ministers in the Scottish executive doing, by and large, the same work, to 12. In fact, I am being more than generous, but I am trying to look after the interests of the noble Lord, Lord Sewel, who, if he manages to get to the Scottish parliament and if his party manages to win, may want a ministerial job. So the more Ministers I create the better his chances will be, although I am not entirely sure that the noble Lord is terribly appreciative of my efforts on his behalf.

However, seriously speaking, I believe that up to 12 Ministers is sufficient. I should like to know how many Ministers the Government envisage. On the face of it, they will probably tell me that I ought to leave this to the good sense of the parliament. But, as I have not been allowed to leave much to the good sense of the parliament this evening, I do not think that that argument will do. As I said, I should like some indication of how many Ministers the Government envisage in this respect. I beg to move.


Lord Renton

I wish to refer only to Amendment No. 255J, which proposes to leave out the words, with the approval of Her Majesty". Those words raise a rather important constitutional matter. The constitution is, to some extent, flexible and, to some extent, obscure. However, as far as we know, the broad principle, or perhaps I should say, the usual practice is that Her Majesty acts only on the advice of the Prime Minister and is normally required to accept that advice.

It is suggested in this amendment that the first minister of the Scottish executive should seek the approval of Her Majesty before other members of the executive are appointed. That introduces a new constitutional concept. One wonders, is the Queen expected to obtain the advice of the Prime Minister before giving that approval? How do the Government envisage that? We really must get it right. Our constitution is something for which we should have great respect. We should not alter any broad principle of it unless there are strong reasons for doing so. Where Her Majesty is concerned, I should have thought that we needed to have Her Majesty's approval before doing so.

Lord Sewel

The noble Lord gives us a package of amendments which seek to rewrite the machinery for the appointment, approval and removal of ministers and junior ministers of the Scottish executive. We cannot accept them.

What the Government propose in this Bill is a carefully thought out set of arrangements which build on the provisions of the White Paper. Before turning to the detail of the amendments, I think it might be helpful to explain why Clause 44 and Clause 46, which deal with junior ministers, are framed in the way they are.

We propose that it will, quite properly, be for the first minister to select whom he wishes to serve in his ministerial team from among the members of the parliament. We have provided that the appointment of ministers and junior ministers must be approved by Her Majesty, as we promised would be the case in paragraph 9.6 of the White Paper. However, we have also built in a formal role for the parliament in approving the appointment of ministers. We are giving discretion to the first minister to remove ministers from office and we are ensuring that if the executive loses the confidence of the parliament, then all ministers shall cease to hold office. That is the framework that we are providing.

I must say that I find the amendments put down by the noble Lord to be an interesting but curious bunch. I am grateful to the noble Lord for his explanation of what prompts his proposals, but I am not attracted by his solutions.

Taking each proposal in turn, Amendments Nos. 255J, 255M, 255T and 255W in effect remove the involvement of the Crown in the appointment and removal of ministers and junior ministers of the Scottish executive. As the noble Lord, Lord Mackay of Ardbrecknish, observed, the appointments of UK Government Ministers are of course all approved by Her Majesty and UK Ministers hold their office at Her Majesty's pleasure.

Some of us have been poring over the recent press release from No. 10, which contained the words, "Her Majesty has approved the appointment of" and then lists them all.

Does the noble Lord wish to argue that after the establishment of the parliament the status of a minister carrying out significant duties, say, in relation to education in Scotland, should be different from what it is at present and will continue to be elsewhere in the United Kingdom? I think that that sort of gesture sends completely the wrong message, particularly from someone who wishes to maintain the strength of the Union.

It seems to me that it would be completely wrong to say that, although a UK Minister is appointed by the Crown and holds office at the pleasure of the Crown, that is not the case for a Scottish minister. It would clearly give the impression of some sort of second-class citizenship among Scottish ministers. I do not think that is advisable.

I turn to Amendments Nos. 255K and 255U. I am not surprised to see an attempt to impose a limit on the numbers of ministers who may be appointed. However, I think it is quite wrong to impose such a limit. I was interested to hear about the magic number six. It seems to be a case of using what one already has, and that is considered sufficient. I think we must accept that we cannot make an assumption about how the first minister will want to organise and distribute the various ministerial portfolios.

Those of us who have been involved in the debate and the discussion in Scotland are fully aware of a small kind of sub-market in pamphlets, as it were, that have been doing the rounds which indicate how a Scottish executive should be structured. I am not saying any one of these is the right structure. I am saying that different structures of different degrees of attractiveness are being discussed. However, I think it would be extremely constraining to put a limit of six on the number of ministers whom the first minister could appoint.

Are we trying to prevent excess? I think the best guardians against excess are the Scottish people themselves and the Scottish parliamentarians. If they see a bloated executive, they will reach their own conclusions and they will deny it support either within the parliament or at the subsequent elections. Therefore it is not just a matter of leaving it to the Scottish parliament, it is a matter of leaving it to the judgment of the Scottish people too.

I turn now to Amendments Nos. 255L and 255V. These would remove from the Bill the provision that the parliament should agree the ministers and junior ministers whom the first minister wishes to appoint. As I understand it, the Opposition object to what they see as some kind of constitutional novelty, but I am afraid I think they have failed to understand the way in which the role given to the parliament in the appointment of ministers has been constructed. This is a provision which we regard as vitally important in terms of the ability of the Scottish parliament to hold the executive to account. Indeed it links with the provisions to which I have just referred and provides a balance with the powers of the first minister. The first minister appoints ministers, but subject to the approval of the parliament. I think that is particularly important in the context of a parliament which may well—as has been alluded to on more than one occasion—be more delicately balanced than is usual under the first-past-the-post electoral system. The fact that the executive as a whole has received the endorsement of the parliament—in a parliament where there may not necessarily be overall majorities or stable majorities—will lead to a greater degree of stability. That is something that should not be lost sight of.

I turn now to Amendments Nos. 255N and 255X. These would allow individual ministers to be forced to resign as the result of a vote of no confidence. Again, I think that fails to recognise the way in which the doctrine of collective responsibility will apply to the Scottish executive. Ministers will exercise their responsibilities as part of the executive, and it is right that Clauses 44 and 46 should reflect that position. As the noble Lord has already said, these clauses provide that only a vote of no confidence in the executive as a whole would formally compel resignation, and in that case it should be the executive as a whole that resigns. To put it another way, the Bill is properly concerned with the relationship between the executive and the parliament, and not with the relationship between individual Ministers and the parliament.

Of course there will be nothing to prevent the parliament resolving that it has no confidence in an individual. But that will be a matter to be dealt with as part of the normal political processes and not through the formal machinery set out in the Bill. The Bill is about establishing a proper relationship between the parliament and the executive as a whole. It does not, however, prevent the parliament taking a view in terms of confidence or no confidence, passing judgment on an individual Minister. But that is not a matter for the Bill; it is a matter for the politics of the parliament. In all reality, it would be virtually impossible for a Minister who had received a vote of no confidence by the parliament to carry on. The political pressures would be too great.

The amendments proposed are an attempt to recast the whole basis of the appointment, nomination and removal of Scottish Ministers and the number of Scottish Ministers who are available to the first minister. I believe that that would disturb the relationship, structure and framework that we have tried to establish through the Bill. We are providing a more coherent and defensible structure for the making of ministerial and junior ministerial appointments. I hope that the noble Lord will feel able to withdraw his amendment.

12.15 a.m.

Lord Mackay of Ardbrecknish

I thank the noble Lord for his reply, although he started out in a rather "crosspatch" mood. As I indicated clearly, I tabled these amendments in order to ask why the words were there, what they meant and what were their implications. If the noble Lord had not used the prepared speaking note, whereby it looked as though I merely wanted to knock them out of the Bill, perhaps we might have got to the essence of the matter more quickly.

I absolutely accept that new Ministers in the United Kingdom are appointed with the approval of Her Majesty. I must check how that worked in my case. I think that will probably come as news to most lay people—by "lay" I mean those who are not great constitutional experts. As I said, I know that great Secretaries of State are appointed in that way, and I suspect that important people such as Law Officers are appointed in that way; however, it never seemed to me that junior Ministers like myself were appointed in that manner. However, I accept entirely the answers given by the noble Lord on those points and I am quite content.

On the limit of 12, I knew that the noble Lord would tell me to leave it to the parliament. During the long Recess I shall count the number of times that he tells me that, and when we come to Report we shall not allow him to complain when we suggest to him that he should leave it to the parliament when we propose that certain matters should be taken out of the Bill. I thought I should receive that response.

I do not think that I looked at the figure six and said that six Scottish Office Ministers is enough. I am far more generous: I doubled the number and proposed 12. I received no indication from the Minister as to how many he thought might be used. Six senior Ministers could be appointed under the terms of Clause 44 and a further six under Clause 46.

I understood the noble Lord's answers about the parliament's approval. I am slightly interested in the concept that the parliament is to be asked to approve each appointment. I see where the Minister is coming from, if indeed we have a parliament with a coalition. It will be interesting politically to see whether the parliament decides not to approve of a particular—

Lord Sewel

For the avoidance of doubt, I certainly did not mean to say that it would necessarily be approval of each appointment; it could well be approval by an en bloc slate.

Lord Mackay of Ardbrecknish

I understand that; it probably would be. But if someone in the parliament or a group in the parliament did not like one of the appointments, they would use the procedures to tease that one out and look at it individually.

On the point about the vote of confidence, I accept collective responsibility and was pleased to hear the Minister accept that if the parliament found a way to propose a vote of no confidence in one individual, then he or she would probably be sacked by the prime minister or feel obliged to resign. Dare I say it, I do not think my three words to be added, "either he or" would have made all that difference to the Bill. However, in the spirit that these were probing amendments to ask exactly how the two clauses were worked and why they were put together in the way they were, I am reasonably satisfied with the answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 255K to 255N not moved.]

Clause 44 agreed to.

Clause 45 [The Scottish Law Officers]:

[Amendment No.255P not moved.]

Lord Mackay of Drumadoon moved Amendment No. 255Q:

Page 20, line 19, at end insert—

("(1A) The Lord Advocate and Solicitor General for Scotland shall be qualified as either—

  1. (a) an advocate, or
  2. (b) a solicitor under the Solicitors (Scotland) Act 1980.").

The noble and learned Lord said: This is a very small amendment. I may be wrong but I believe it was suggested at some stage by the Law Society of Scotland. I am well aware that mentioning that support does not always meet with approval on the Government Front Bench, but on this occasion there is no reason why it should not. All it seeks to provide is that both the Lord Advocate and the Solicitor-General for Scotland should be qualified either as an advocate or as a solicitor under the Solicitors (Scotland) Act 1980. The noble and learned Lord the Lord Advocate qualifies under the first branch of the amendment; he would formerly have qualified, the last one being, like myself, a struck off solicitor. It seems eminently sensible that this should be on the face of the Bill and I hope that for once the Law Society's suggestion might prove acceptable to the Government. I beg to move.

Lord Thomas of Gresford

As a member of the struck off solicitors' club, I also support the amendment. It seems to me that if a solicitor today can appear in the High Court, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council, he ought to be qualified to be the Lord Advocate or Solicitor-General for Scotland. I support the amendment.

Lord Rodger of Earlsferry

There is just one matter which does not directly arise out of the amendment. I wish to ask the noble and learned Lord the Lord Advocate whether he could help with this matter.

Clause 44(3)(c) envisages that a minister appointed under that clause may resign. Clause 45 envisages, so far as I can see, only that the first minister may recommend the removal of a person as Lord Advocate. It is not unknown for Lords Advocate to adjourn from time to time to resign their office. Is it possible, under this legislation, for the Lord Advocate to resign? I ask that because, as the noble and learned Lord the Lord Advocate will know in general terms, although he will not have studied it from his point of view, the Lord Advocate's resignation or, as it is put in the more genteel language of the Criminal Procedure (Scotland) Act 1995, the demission of office, has certain important consequences from the point of view of the prosecution of crime, the office of advocate's depute, indictments and so on.

In that situation, it is important that the question as to the resignation or demission of office of the Lord Advocate and the Solicitor-General should be dealt with. Because under the Bill they become creatures of statute, if one looks at Clauses 44 and 45 together, one might wonder whether the Lord Advocate could resign.

Perhaps the Government could look again at the terms of Clause 45 and consider whether an amendment to deal with the resignation or demission of office of the Lord Advocate might be appropriate.

Lord Hardie

There is some force in what the noble and learned Lord, Lord Rodger of Earlsferry, says. I shall look at the matter and come back to him either in writing or at a later stage.

In relation to the amendment proposed by the noble and learned Lord, Lord Mackay of Drumadoon, which is supported by the noble Lord, Lord Thomas of Gresford, apart from the debate in the other place, so far as I am aware, the last time that this issue seems to have been considered was in 1924 when Ramsay MacDonald formed a Labour Government.

It is said that it was a radical suggestion that a solicitor should be appointed as Lord Advocate. The Lord President of the day—Lord President Clyde—wrote a memorandum to Downing Street, which was published. That memorandum states clearly that it is part of the unwritten constitutional law of the land that the Lord Advocate and Solicitor-General for Scotland are appointed from among the members of the Scottish Bar. That springs, in the same way as other parts of the law, from long custom. It has not been felt necessary in the past to prescribe the qualifications for office of the Scottish Law Officers and it is not clear why that should be necessary now.

To deal with the point made by the noble Lord, Lord Thomas of Gresford, although certain solicitors have rights of audience in the supreme courts, they may only have rights of audience if they satisfy certain criteria, and even then they only have rights in the civil courts, the criminal courts or both. It is my understanding that few solicitors in Scotland qualify for rights of audience in both. It would not be appropriate, therefore, to have someone who did not have a right of audience in both the civil and criminal supreme courts to hold office as Lord Advocate or Solicitor-General.

Again, this is not something which ought to be enshrined in statute and I invite the noble and learned Lord to withdraw his amendment.

Lord Thomas of Gresford

I regard that reply as unsatisfactory because it seems to me that it is against the grain of how things are moving both in England and Wales and in Scotland. I note that the Law Society of Scotland suggested that the first appointment of a King's solicitor in 1587—Mr. William McCartney—was of a man who was regarded as a King's Clerk, writer and special agent, which suggests he was a solicitor in those days. It was later that the office became the preserve of the members of the Faculty of Advocates.

We are moving forward with rights of audience. I should have thought that the Lord Chancellor might have a word with the noble and learned Lord on this topic. I know that he is concerned to advance the rights of audience of solicitors and is making proposals to that effect. I do not believe it is enough to leave the legislation as it stands; there should be specific provision in the Bill for solicitors to hold those offices.

Lord Mackay of Drumadoon

I too find the reply of the noble and learned Lord a disappointment. He said that he did not consider it appropriate that the positions of the Lord Advocate or the Solicitor-General should be held by anyone who was not a member of the Faculty of Advocates. But we have to be clear what the Government's view is on this issue.

It is quite possible that solicitors will be elected as members of the Scottish parliament. Equally, it is quite possible that members of the Faculty of Advocates will be elected as members of the Scottish parliament. If it falls to the first minister to say to a potential law officer, "I am sorry, I cannot make you a law officer because you are a solicitor", then whether or not rights of audience are extended is neither here nor there. If he says, "I cannot make you one", I can see that that will create considerable unrest both within the parliament and within the profession. I hope, therefore, that before we come to Report this matter can be looked at more fully.

My understanding is that the Lord Advocate can appoint as one of his deputes, to act in his name and to prosecute in the High Court of Justiciary, someone who is neither a member of the Faculty of Advocates nor holds extended rights of audience. As some Members of the Committee will be aware, that understanding followed from advice from the committee which examined the issue. As we move forward to a new parliament, it would be a retrograde step to be apparently moving backwards to 1926. I do not expect the noble and learned Lord, Lord Clyde, to seek to defend his grandfather's views but he would acknowledge that they might fall to be reconsidered some 70 years on.

For reasons which will be obvious to many noble Lords, this is not a matter to press to a Division at half-past twelve, but we shall return to it unless there is some change of heart. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.30 p.m.

[Amendments Nos. 255R and 255S not moved.]

Clause 45 agreed to.

Clause 46 [Junior Scottish Ministers]:

[Amendments Nos. 255T to 255X not moved.]

Clause 46 agreed to.

Lord Steel of Aikwood had given notice of his intention to move Amendment No. 256.

After Clause 46, insert the following new clause—