Speech for The Lord Advocate - Conference on Scottish Devolution


SPEECH BY THE LORD ADVOCATE
CONFERENCE ON SCOTTISH DEVOLUTION - STRATHCLYDE UNIVERSITY - 27 FEBRUARY 1998

‘WHAT DEVOLUTION MEANS FOR SCOTS LAW AND SCOTS LAWYERS’

	INTRODUCTION
	THE TRADITIONAL ROLE OF THE LORD ADVOCATE
	ADVOCATE GENERAL FOR SCOTLAND
	THE MECHANICS OF PASSING SCOTTISH LEGISLATION
	HOW IS A CONFLICT BETWEEN THE NEW PARLIAMENT AND WESTMINSTER TO BE RESOLVED?
	THE ROLE OF THE HOUSE OF LORDS
	CONCLUSION

INTRODUCTION
My Lord, Principal of the University, Ladies and Gentlemen; - I am delighted to be invited to contribute to what must be the most vital discussion in Scotland at the present time. The fact that the decision to have a devolved Parliament received such overwhelming endorsation from the people of Scotland on the 11 September 1997 is testimony to the strong desire by the people of Scotland to be "trusted to make the right decisions on their own behalf" (Extract from White Paper) in matters which are inherently Scottish and which particularly affect Scotland's present and future role in its relations with the rest of the United Kingdom, Europe and the world at large.
I am conscious, as I speak to you today, of two further thoughts;
FIRSTLY, - that as we sit here, in Glasgow debating devolution, we are already participating in the wider debate intended for the people of Scotland and referred to by the Secretary of State in his introduction to the White Paper when he said that a Scottish Parliament would "connect and involve people with the decisions that matter to them". It would "bring a sense of ownership to political debate"; and
SECONDLY, - that it was at this very University in 1993 that the "Centre for Parliamentary and Legislative Studies" was established in order to stimulate the teaching of, and research into the drafting and interpretation of legislation. This forward looking approach was adopted as it was realised that if lawyers were to make any meaningful contribution to the development of our law - to quote St. John Bates, (another of your speakers today), - it would be necessary to reflect in legal education "the importance of legislation as a source of law and of the need for the lawyer to be more fully trained in its use".
It is, therefore, especially gratifying to be speaking at this University, sharing a platform with those for whom Devolution has been a particular interest and to an audience who will have such an important part to play in moulding and interpreting the laws of Scotland as they evolve in the Scotland of the future.
I would like also to acknowledge today, the very positive contribution that has been made and continues to be made by others, particularly the Scottish Law Commission and the Law Society of Scotland, in the debate to turn the White Paper proposals of yesterday and draft Bill of today into the reality of the new constitutional framework of the Scotland of tomorrow.
I have been asked to speak on a number of specific points, and so as to ensure that I do not overlap with the subject matter of other Speakers, - I shall confine myself to looking at the ways the traditional role of the Law Officers will be affected; the manner in which the independence of the prosecution system will be preserved, the mechanics of passing Scottish legislation, ways in which conflict between the exercise by the new Parliament on the one hand, of its powers of legislation and the framework within which it is entitled to act under the Scotland Bill on the other, will be resolved; and similarly how issues of conflict between Scottish Legislation and European Law will be reconciled; ending with a few comments on the changing role of the House of Lords.
THE TRADITIONAL ROLE OF THE LORD ADVOCATE
As you will all know, Scots law is a distinctive system of law different from that of England. Scottish legal practitioners have been proud of its traditions, believing that, at least in some aspects, particularly in relation to the system of criminal law and procedure, it is inherently superior.
The office of the Lord Advocate which is central to Scotland’s legal system, is an ancient one. The line of Lord Advocates can be traced back to 1483, that is to say prior to the Union of the Crowns, the Union of 1707 and the establishment of the Court of Session! The Lord Advocate was recognised as an important officer of the State well before the Union of 1707 and indeed, was an ex-officio member of the 1707 Scottish Parliament. The Lord Advocate has no English counterpart. It is entirely appropriate, therefore, that when Scotland again has its own legislative assembly, that the Lord Advocate and his deputy, the Solicitor General, should become members of that assembly - as part of the Scottish Executive under Clause 41 of the Scotland Bill.
Historically, the offices of Lord Advocate and Procurator Fiscal pre-date modern police forces. The independent prosecution service in Scotland headed by the Lord Advocate is quite distinct from the prosecution service in England where the right of individuals to institute criminal proceedings is a fundamental part of the system. The pattern of the Scottish system has been consistent through the centuries and is reflected in the statements made by the institutional writers, in the distillation of Parliamentary conventions and in statutory provision. As the independence of the prosecution system in Scotland has always been characterised by reference to the Lord Advocate, who is the head of that system, it would be impossible to devolve the office of Lord Advocate without making provision for the prosecution system to be devolved.
Accordingly, this traditional position of the Lord Advocate as head of the systems of criminal prosecution and investigations of death is preserved and entrenched in Clause 28(2)(e) of the Bill.
While securing the constitutional position of the Lord Advocate and the Solicitor General for Scotland and maintaining the status quo in relation to the Lord Advocate's retained functions, it was also essential to ensure that his traditional independence and that of the procurator fiscal service was not eroded. The Bill contains safeguards which, I am confident, will enable the Lord Advocate to perform his prosecutorial function impartially and free of all political interference.
In carrying out his function as head of the prosecution system in Scotland, the Lord Advocate will, of course, continue to be called upon to administer the criminal law in relation to areas of law that are both devolved and reserved; thus encompassing matters that are within the legislative competence of the Scottish Parliament and those which are not. The alternative would have been to have two prosecution systems operating within the one jurisdiction. This may have been technically possible but would have been wholly undesirable and liable to cause more problems than it would solve as well as increasing bureaucracy and expense unnecessarily.
Another major part of the Lord Advocate's work is in the giving of legal advice to the government. It is obvious that the Scottish Executive will require similar advice and assistance, especially in its formative days when it will be particularly important to establish a smooth working partnership and effective relationship between the UK and Scottish parliaments. This role is to be performed by the Lord Advocate as one of the members of the Scottish Executive.
ADVOCATE GENERAL FOR SCOTLAND
At present the United Kingdom government relies on the Lord Advocate and Solicitor General for advice on all matters of law relating to Scotland. Once these Law Officers are devolved they will cease to be able to give the UK government this advice as their responsibilities will be to the new Scottish Parliament and Scottish Executive. However, the United Kingdom government will still require to have authoritative advice on Scots law in relation to both devolved and reserved matters, so as to enable it to have a complete picture of what is happening in the whole of the United Kingdom. That advice will be provided by a new law officer to be called the Advocate General for Scotland. It is intended that the holder of that office should have Ministerial status and should be a Scots lawyer of considerable eminence and authority. The Crown Suits Act will also be amended so as to allocate responsibility between the Lord Advocate and the Advocate General to represent, respectively, the Scottish Administration and the UK government.
For the most part, therefore, Scottish practitioners are unlikely to detect any major change in the role of the Lord Advocate after devolution. Most obviously, he will continue to be the head of the system of prosecution of crime and the investigation of deaths in Scotland. He will also continue to represent the Crown in proceedings which relate to the Scottish Administration. He will, of course, be the principal law officer to the Scottish Administration and as such will continue to have a crucial influence on the development of the law of Scotland. In addition, the Scotland Bill gives the Lord Advocate and the Solicitor General the right to participate in the proceedings of the Parliament even though they are not Members. Accordingly, it seems likely that the influence of the Lord Advocate will be at least as great as it has been hitherto.
Many of you will be aware that in 1972, with the establishment of Scottish Courts Administration, responsibility for the policy of evidence and civil procedure was passed to the Lord Advocate along with responsibility for making a number of appointments to certain tribunals. In addition, for a very long time the Lord Advocate has had a crucial, but informal role, in advising the Secretary of State on appointments to the Shrieval and Supreme Court bench. The general scheme of the Scotland Bill seeks to give the new First Minister maximum flexibility in the distribution of responsibilities to other Scottish Ministers. Accordingly, those functions which were transferred to the Lord Advocate in 1972, along with comparable functions transferred subsequently, will, immediately before the Lord Advocate's office devolves, be transferred back to the Secretary of State for later transfer, on full devolution, to the Scottish Ministers collectively.
Notwithstanding these formal transfers, I fully expect the Lord Advocate to continue to have the considerable influence which he has always been recognised as having, whatever other ministerial portfolios he may have from time to time after devolution.
THE MECHANICS OF PASSING SCOTTISH LEGISLATION
There was never any intention that the United Kingdom Parliament should lose its overall sovereignty, but rather, that it would choose to exercise that sovereignty by devolving legislative responsibility to the Scottish Parliament in matters of a particularly Scottish dimension. At the same time the UK Parliament would retain its powers in matters that affected the United Kingdom as a whole would and reserve the power to prohibit an Act of the Scottish Parliament from becoming law, where it would be incompatible with the international obligations of the United Kingdom.
The Scottish system of criminal law and procedure has developed largely through the common law over the past 4 centuries alongside the system of public prosecution. Indeed, there are comparatively few statutes of importance for substantive Scottish criminal law in comparison with the more codified approach in England. The Act of Union of 1707 specifically preserved the Scottish legal system including the courts, and while the English criminal system became more rigid, the Scottish system's predominant characteristic is its flexibility. Scottish solutions are often different and the two systems of criminal law are, therefore, very distinct. Accordingly, it was inevitable that the criminal law insofar as it did not relate to a reserved matter, should be devolved. However, Scots criminal law shares with that of England and Wales a common body of statute law in some very significant areas such as drugs, firearms, road traffic, financial services and company law. In such cases it was recognised that there was a need to preserve a consistency of approach throughout the UK and these are important examples of areas of law which will be reserved.
In a small country like Scotland, the courts have not had sufficient cases in the area of private law to allow the private law to be developed by judicial decision. As a result much has been left unchanged and pressure of time at Westminster has meant little opportunity to consider reform of Scottish civil law, far less look at it in the context of its relationship with Scottish Criminal law.
One result of the problem of time at Westminster, is a tendency to lump together various disparate topics of legislation or to have Scottish modifications or parts in legislation otherwise intended for English needs. The creation of a Scottish Parliament provides an opportunity for a more rational approach to legislate for Scottish needs. However, it is worth remembering at the same time that the bedrock of the Scottish legal tradition is to be found NOT in legislation but in legal principles and the common law. It is important, therefore, to recognise and protect that inheritance and guard against legislation for legislation's sake.
The White Paper makes it clear that the Government expects the Scottish Parliament to develop its own methods of working and to that end has drafted the Scotland Bill so as not to be prescriptive as to the way in which legislation is to be considered by the parliament. Clause 34 of the Bill provides a framework of 3 stages whereby Bills are to be considered - first as to their principle, then as to the detail of the provisions and finally as to the passing or rejection of a Bill as a whole. Within that framework there is substantial scope for the Scottish Parliament to devise procedures for the scrutiny of legislation, whether by taking evidence from experts in the field, or in detailed scrutiny of the drafting, which will best suit its needs.
As you will be aware, the Government has established an all party consultative Steering Group under the Chairmanship of the Minister of State, Mr. Henry McLeish, to consider a range of matters relating to the Parliament, including the preparation of interim Standing Orders. Clearly it will be for the Parliament itself to determine its standing orders after it is fully established; but I am sure that the work of Henry McLeish’s Steering Group will prove to be of considerable assistance to the Parliament. I have no doubt that one of the matters that the Group will wish to consider carefully is the fact that the new Parliament will be a uni-cameral body. There will be no second chamber to provide the revising function which a number of commentators have been kind enough to suggest that the House of Lords performs rather well.
One other matter which may merit consideration is whether it would be appropriate for the Parliament to adopt an annual cycle of legislative business, which can often lead at Westminster to the need for legislation to be considered in a very short space of time. A longer legislative session will allow for greater flexibility in the way that different Bills are scrutinised. There could also be the possibility of public or more limited consultation between the different stages of Bills. Against that, however, must be set the fact that the Scottish Executive will have a legislative programme which it will wish to have enacted. The time constraints of the current Westminster arrangements provide a powerful discipline which assists the Government to achieve its legislative programme. It will be necessary for the new Parliament to balance these sorts of consideration in determining what is the best means of regulating its own business.
I think that it would be surprising if the procedures set in place by the Scottish Parliament did not provide for reasonably extensive consultation on draft legislation. The White Paper explains that the Government expect committees to play an important part in carrying out Parliamentary business, and the Scottish Parliament will have power to establish such committees as it considers appropriate. Ultimately, it will be for the Parliament to decide precisely what role the committees should perform but I envisage that these committees will be involved in considering proposals for legislation before the formal legislative process has begun, including, in appropriate circumstances, taking evidence before a Bill is prepared. Their task will be to scrutinise and amend all proposals brought before the Parliament. It is hoped that pre-legislative scrutiny involving interested parties will result in a greater consensus emerging in relation to legislation before it is introduced and, at the end, high quality legislation which fully reflects particular Scottish needs and circumstances. The Law Society of Scotland, the Scottish Universities and many others have sought for a number of years to contribute to the legislative process by providing extensive briefing to legislators on a wide range of matters and the ability to make these contributions will undoubtedly be facilitated by the much easier access of a Parliament in Edinburgh.
HOW IS A CONFLICT BETWEEN THE NEW PARLIAMENT AND WESTMINSTER TO BE RESOLVED?
It is one of the central objectives of the Scotland Bill that it should establish a clear and coherent framework to deal with existing and new legislation relating to Scotland. As far as areas of devolved responsibility are concerned, the intention has been to leave the Scottish Parliament with a full set of responsibilities which will not be unnecessarily constrained. This is to be a Parliament which must be able to account to its electorate for its own actions.
As soon as the Parliament takes up its full devolved responsibilities it will be entitled to enact primary legislation relating to all devolved matters. That means, in particular, that it will be able to legislate in order to change existing United Kingdom legislation which concerns devolved matters. When it does so, the existing UK legislation will be superseded as far as Scotland is concerned but not, of course, elsewhere. In most areas the existing legislation will form the operative body of law for many years to come. However, from the very start, the functions conferred by existing legislation upon United Kingdom Ministers, including the Secretary of State for Scotland, which concerns devolved matters, will be devolved to the Scottish Ministers.
The possibility of conflict obviously arises where there is any question of the Scottish Parliament exceeding its legislative powers or Scottish Ministers going beyond the limits of the powers they have inherited or have had conferred on them by the Scottish Parliament. The Bill aims to establish a robust set of principles against which to assess any claims that the Parliament has exceeded its powers and a set of practices by which any disputes arising from such claims can be resolved.
The starting point is the definition in clause 28 of the circumstances in which legislation of the Scottish Parliament will be outside its competence. I will not recite all the circumstances in which legislation of the Scottish Parliament will be ultra vires - this would require a substantial lecture in itself - but of course one of the central provisions which is at the heart of the structure of the whole Bill, is the proposition that any provision of an Act of the Scottish Parliament which relates to reserved matters, defined in Schedule 5 of the Bill, will be outside the competence of the Parliament. Schedule 5 determines in very great detail the extent of the reserved matters. There are then provisions in Clauses 30 and 31 designed to ensure that potential disputes over the competence of any particular measure are resolved before it becomes law. Under Clause 30 a member of the Scottish Executive is required to make a statement confirming that the provisions of the Bill would be within the competence of the Parliament before the Bill is introduced; and Clause 31 requires the Parliament's Standing Orders to include provision for scrutiny of Bills by the Presiding Officer to ensure that they are within the competence of the Parliament. After Bills become law, any dispute over whether or not provisions of Acts of the Scottish Parliament are within the Parliament's competence would be treated as a "devolved issue" and resolved in accordance with the procedures set out in Schedule 6 of the Bill.
The Government have recognised that a particular area of potential conflict is where general provisions of Scots law might have an impact on reserved matters which will continue to be the responsibility of the United Kingdom Government. It was made quite clear in the White Paper that responsibility for Scots criminal law, apart from specific statutory offences, would be devolved; as would responsibility for Scots civil law, except where it related to particular reserved matters. This is an area where there is a very close inter-relationship between reserved and devolved matters. Legislation about many reserved matters such as company law, child support or pensions, operates against a background of Scots private law; and legislation about, say, criminal evidence and procedure will inevitably have an effect on the way in which statutory offences in reserved as well as devolved fields will be considered in the Scottish courts. A key feature of Clause 28 is that it provides for the Scottish Parliament to be able to legislate for Scots criminal law and Scots private law even where it applies to reserved matters, as long as the provisions concerned apply consistently to reserved and devolved matters. This gives the Scottish Parliament a valuable express permission to maintain and develop the traditional body of Scots law, something to which I, as a Scots lawyer, clearly attach the highest priority.
It was decided that it was essential to provide a means of protecting the legitimate interests of the United Kingdom Government in the impact of the general private law of Scotland on reserved matters. Scots private law is the sea on which both reserved and devolved matters float: clearly it is important to ensure that changes in Scots private law do not sink any of the reserved matters. The Bill, therefore, provides for the Secretary of State to stop a Scottish Bill being submitted for Royal Assent where it includes a provision on private law applying to reserved matters, if the Secretary of State has reasonable grounds to believe that the provision would have an adverse effect on the operation of an enactment applying to reserved matters. Subordinate legislation on private law matters would be dealt with similarly.
I think it is an important example of how the Government in the Scotland Bill has attempted to foresee and deal with particular and specific areas where conflict might arise rather, than opting for the simple but blunt instrument of general override mechanisms which would constrain the responsibility of the Scottish Parliament.
In practice I believe that good working relationships and communication systems are likely to be just as important after devolution as any measures set out in the Bill.
The White Paper makes it clear that the Government sees the relationship between the Scottish Executive and the United Kingdom Government as being a co-operative and consensual process. And in accordance with this theme, concordats will be drawn up between the departments of the Executive and the relevant Whitehall departments so as to facilitate the effective conduct of relationships between the two bodies. There will be regular contact at official level and from time to time contact at ministerial level. A primary aim of these arrangements is to ensure "no surprises" and that the United Kingdom Parliament and Government and the Scottish Parliament and Executive will be kept fully informed about each other's legislative proposals.
Potential conflict with European Community obligations is also covered by these powers, since it is outwith the legislative competence of the Scottish Parliament to legislate in a way which is incompatible with Community Law - Clause 28(2)(d). Similarly it is also ultra vires for a Member of the Scottish Executive to make subordinate legislation or otherwise act in a way which is incompatible with Community law. Similar provision is made in respect of legislation or actions which would be incompatible with any of the rights to be incorporated under the Human Rights Bill.
THE ROLE OF THE HOUSE OF LORDS
The House of Lords, of course, presently carries out two key functions in relation to Scottish law. First, it is the revising chamber for all Scottish primary legislation. In future their Lordships will no longer be considering Scottish legislation on devolved matters and, like the House of Commons, they can expect to spend rather less of their time dealing with Scottish legislation.
Their second role, however, remains - this is their function as the final court of appeal in hearing civil cases arising from the Scottish courts. The practice of taking civil appeals to the House of Lords at Westminster was established by custom and tradition after the Acts of Union and the position was confirmed in the Appellate Jurisdiction Act of 1876. It is, therefore, deeply entrenched in our recent history. It is, of course, different from the position in relation to criminal cases, which are decided finally at the High Court in Edinburgh.
However, the role of the House of Lords in its judicial capacity is expressly affected in two ways by the Scotland Bill.
FIRST - paragraph 32 of Schedule 6 requires the House of Lords to refer any devolution issue arising in proceedings before it, to the Judicial Committee of the Privy Council unless the Lords consider that it is "more appropriate in all the circumstances that it should determine the issue".
SECOND - and perhaps more important, Clause 94 provides that any decision of the Judicial Committee of the Privy Council "shall be binding in all legal proceedings (other than proceedings before the Committee)".
Thus in relation to devolution issues the House of Lords will, in effect, cease to be the final court of appeal in civil matters. This is not so momentous a step as it might once have seemed, since we must all by now be accustomed to the fact that the House of Lords is not supreme in relation to questions of European Community law.
CONCLUSION
Ladies and Gentlemen, - in 1999, - in the words of Clause one of the Bill "There shall be a Scottish Parliament" - It will be for the Members of the Scottish Parliament and the Scottish people to face that challenge and to show that they can be entrusted to "make the right decisions on their own behalf" - to legislate properly, sensibly, economically and taking full advantage of having a Parliament within their own country to legislate in their own best interests. I am sure that the confidence of the Scottish people will be fully justified and that the Scottish Parliament will lead Scotland strongly into the 21st Century.