Scotland Act 1998: Role of the Lord Advocate

David Duguid Excerpts

Tuesday 20th July 2021 Commons Chamber

[The Parliamentary Under-Secretary of State for Scotland (David Duguid)]

I thank the hon. Member for East Lothian (Kenny MacAskill) and congratulate him on calling this Adjournment debate. I know that he and others—he in particular—have taken a keen interest in this subject. I am grateful for the opportunity to hear his views and those of others on this important constitutional issue, particularly in the light of the hon. Member’s former role as Cabinet Secretary for Justice in the Scottish Government.

I recognise the concerns that the hon. Member raised during his speech regarding the dual role of the Lord Advocate, both current and historical—we always enjoy a bit of Scottish history when we hear the hon. Member speak in this place—as the senior legal adviser and the most senior Law Officer. The hon. Member referenced specific cases. I hope he understands that it would be inappropriate for me or any Minister to comment specifically on those cases at this point. Although the UK Government would have a role to play in any changes to the role of the Lord Advocate, I stress that it would be inappropriate for me to speculate on what action should be taken at this time. I will therefore provide some context on the role of the Lord Advocate before I explain the set process that any changes must go through before the UK Government can take a position.

[Joanna Cherry]

I hear that the Minister is not going to speculate or set out a plan, but does he agree that one route might be for this Parliament to pass a Bill amending the Scotland Act so that the dual role of the Lord Advocate could be revisited by the Scottish Parliament? Of course, under the current Scotland Act, the role of the Lord Advocate is reserved to this Parliament. Does he agree that one potential way forward would be to pass very straightforward Bill that gave the power to change the role to the Scottish Parliament?

[David Duguid]

I will be coming to that point in a bit more detail later in my response. Although that is possible in theory, I will explain later why in practice the UK Government would choose not to go directly down that route. If the hon. and learned Lady will forgive me, I will come back to that in a minute or two.

The context of the role of the Lord Advocate is the Scotland Act 1998, which I will refer to, for brevity, as the 1988 Act. Section 48 of that Act makes provision regarding the appointment of the Lord Advocate and their removal from office. The 1988 Act itself came about after 74% of voters in the 1997 devolution referendum were in favour of a Scottish Parliament. The subsequent ’98 Act devolved significant powers to Scotland and legislated for the establishment of a Scottish Executive, later known as the Scottish Government, and a Parliament. The Scottish Parliament took responsibility in areas such as education, law enforcement, health and social care, and local government, among others, but there are many others that remain the prerogative of the UK Parliament through schedule 5 to the Act. There are too many to list, but a few examples would be foreign affairs, international trade, defence, national security, energy and, of course, the constitution.

Since 1998, there have been two major adjustments to the devolution settlement, the Scotland Acts of 2012 and 2016. The 2012 Act represented the first transfer of fiscal powers from Westminster to the Scottish Parliament following devolution. After the independence referendum of 2014, where the clear majority voted to stay in the Union, and after the Smith Commission, the 2016 Act was passed to transfer a range of tax and welfare powers to the Scottish Parliament. These Acts have created one of the most powerful devolved Parliaments in the world and give the Scottish Government power over numerous aspects of Scotland’s governance.

As hon. Members will be aware, the Lord Advocate is the Scottish Government’s most senior Law Officer and principal legal adviser—that is the topic of this debate. Section 48 of the 1998 Act, in addition to providing for the appointment of the Lord Advocate and their removal from office, also makes provision for the independence of the Lord Advocate in their capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. This was to ensure the traditional independence of the Lord Advocate when taking decisions related to those matters continued after they became a member of the Scottish Government.

The Lord Advocate’s role as head of the systems of criminal prosecution and investigation of deaths is, in section 29 of the 1998 Act, protected from modification by an Act of the Scottish Parliament. The hon. Member for East Lothian has mentioned the limitation on legislative competence in section 29, and any formal separation of responsibilities would require legislation. Although the UK Government have the power to bring forward legislation to make this change, in practice we would want to ensure the Scottish Government have first put their proposals to the Scottish Parliament for scrutiny.

[Jim Shannon (Strangford) (DUP)]

This is a complex matter, but does the Minister not agree that there is distrust and conflicting opinions on the division of the role of the Lord Advocate within the Scottish Parliament and Holyrood, and that these proposals would need to be scrutinised before the Scotland Act 1998 is changed? Does he further agree that these matters must be addressed in Holyrood before Westminster is expected to change law?

[David Duguid]

I thank the hon. Gentleman for his timely intervention, because that is kind of the point I was making. Although the UK Government, as I said to the hon. and learned Member for Edinburgh South West (Joanna Cherry), have the power to bring forward such legislation, in practice we would want to ensure that the Scottish Government have put the proposals to be scrutinised by the Scottish Parliament. It is therefore a matter for the Scottish Government, in the first instance.

It is only right that the Scottish Parliament has an opportunity to scrutinise and debate these proposals. Only once these proposals are agreed in principle in the Scottish Parliament would we expect the Scottish Government to make a formal representation to the Secretary of State for Scotland, as custodian of the devolution settlement, and then the UK Government would consider the next steps.

As I think the hon. and learned Lady said, the SNP made a manifesto commitment ahead of the recent Scottish parliamentary elections to consult on whether the dual function should be separated in the future. It is right that our colleagues at Holyrood, rather than UK Ministers, take the lead on deciding what must now happen, or at least they should take that first step. We have not received, as far as I know at this time, any requests from the Scottish Government to amend the 1998 Act, and it would therefore be premature for the UK Government to comment further on that point.

[Neale Hanvey]

Surely there is nothing to prevent the Scottish Government from returning to the arrangement of the Salmond Government, where the Law Officer recused himself from Cabinet discussions on an informal basis, despite the separation of powers not being in place. That would at least show some willingness towards a formal separation, or towards a consideration of that matter before the Scottish Parliament.

--- Later in debate ---

[David Duguid]

I thank the hon. Gentleman for his intervention. Of course, what he is referring to is an informal arrangement, and by definition there would be nothing to stop such an informal arrangement if that was agreed by those involved, but again the question is not one for me, as a UK Government Minister, to decide.

The UK Government continue to work closely with the Scottish Government on all amendments to the 1998 Act to ensure that we are delivering together for Scotland. Devolution, brought about by that Act, is the means by which our two Governments work together. It is also the means by which we continue to live in one of the most successful and long-lasting political unions in history, as part of a devolution settlement that is aimed—and we strive for this, at least—to strike the right balance.

Question put and agreed to.