Scotland Act 1998: Advice to Her Majesty the Queen (Hansard, 1 July 1999)

§ Baroness Jay of Paddington

In a number of situations advice is, by convention, given by a Minister of the Crown to Her Majesty in respect of the exercise of Her functions. The majority of Her Majesty's functions in respect of which she receives advice from a Minister of the Crown in this way relate to the making of appointments and the use of the Royal prerogative.

As a consequence of the new constitutional arrangements under the Scotland Act 1998, it is proposed that in some of those situations the First Minister instead of a Minister of the Crown will give advice, by convention, to Her Majesty after 1 July in respect of Her functions. No formal order is required to give effect to these transfers, which will be carried out by administrative arrangement. In this context "Her Majesty's functions" refer to Her statutory functions and cases where Her Majesty acts under Her prerogative or common law powers. It concerns only those functions of Her Majesty which she exercises personally and not those which are exercised on Her behalf by a Minister of the Crown. It deals only with circumstances in which a Minister of the Crown provides advice to Her Majesty by convention and it does not deal with circumstances in which a Minister of the Crown exercises a statutory function of advising Her Majesty. Where appropriate, provision has been made in the Scotland Act or in subordinate legislation under the Scotland Act to transfer these statutory advice-giving functions from the Minister of the Crown to the First Minister.

In cases where Her Majesty exercises a function which is exercisable within devolved competence for the purposes of the Scotland Act 1998 and she is, by convention, advised by a Minister of the Crown about the exercise of that function, then after 1 July She will be advised by the First Minister instead of by a Minister of the Crown.

For example, Her Majesty exercises the Royal prerogative of mercy and appoints regius professors of the ancient Scottish universities in this way. A list of 51WA further examples of circumstances in which Her Majesty will in future be advised by the First Minister instead of by the Secretary of State in relation to the exercise of Her functions which relate in whole or in part to a devolved matter has been placed in the Library.

There are some matters in respect of which the Prime Minister gives advice to Her Majesty on the exercise of Her functions and on which it would be appropriate for the Prime Minister to consult or to take advice from the First Minister. These matters include recommendations of Scottish candidates for honours and dignities, which are a reserved matter, and advice on the appointment of Lord Lieutenants in Scotland, the Lord High Commissioner to the General Assembly of the Church of Scotland and members of the Royal Commission on Environmental Pollution and the Forestry Commission. There are also matters where a Minister of the Crown gives advice to Her Majesty and where it also would be appropriate for the First Minister to be consulted by or to give advice to that Minister of the Crown.

The Scotland Act 1998 confers upon the First Minister various functions of advising Her Majesty either directly or through the Prime Minister. This includes seeking Her Majesty's approval for the appointment of Scottish Ministers and recommending to Her Majesty persons for appointment as the Scottish Law Officers. Section 95 of the Act sets out in detail the arrangements for the First Minister to nominate persons for appointment as Lord President of the Court of Session and Lord Justice Clerk to the Prime Minister, who in turn makes recommendations on those appointments to Her Majesty. It also provides for the First Minister to recommend to Her Majesty the appointment of other judges.

In a number of other situations Her Majesty is advised in relation to the exercise of Her functions by the Privy Council rather than by a Minister of the Crown. The Privy Council deals with various items of Scottish business, both prerogative business and statutory matters, such as the grant of Royal Charters and Privy Council appointments. A paper has been placed in the Libraries of both Houses that briefly describes the circumstances in which the First Minister will from 1 July contribute to Privy Council business in the same manner as the Secretary of State for Scotland has done.