Scotland Act 1998: Scottish Civil Service

Iain Stewart Excerpts

Tuesday 16th March 2021 Commons Chamber

[The Parliamentary Under-Secretary of State for Scotland (Iain Stewart)]

May I start with the customary congratulations to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on securing this timely debate? He has a long and distinguished record of shining a light on matters of probity and accountability in public life. I should note that he does that against Governments of all political colours and is not discriminatory in his desire to see the truth and accountability.

My right hon. Friend has raised important questions tonight, but I must make it clear from the outset that it is not appropriate for me as a Minister to comment on the specifics of the various inquiries to which he referred that have not yet concluded, or on the information that he has put before the House tonight. I am sure, though, that those matters will be of considerable interest and widely debated elsewhere. I hope my right hon. Friend understands why I have to limit my comments to some of the general procedural and structural issues that he raised in his speech.

I do not have a huge amount of time, so I will try to cover three broad issues that my right hon. Friend raised: first, the privilege and powers of MSPs to obtain and discuss evidence, compared with the rights we have in this House to hold the Executive to account; secondly, the dual role of the Lord Advocate as both Scottish Government legal adviser and head of the Crown Office and Procurator Fiscal Service; and thirdly, a more general point on the lines of accountability in the Scottish civil service in Scotland.

Let me take each issue in turn. In this House, matters of parliamentary privilege are regulated by Parliament alone. Parliament holds sole jurisdiction—known as exclusive cognisance—over all matters that are subject to parliamentary privilege. That principle underpins all privilege, with article 9 of the Bill of Rights 1689 being the most important statutory expression. It says 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”.

In comparison, Members of the Scottish Parliament are protected against defamation as set out in section 41 of the Scotland Act 1998 but are not covered by article 9 of the Bill of Rights, so they have fewer protections. It is within the gift of the Scottish Parliament to amend the situation if it so wishes. As my right hon. Friend will know, there are Scottish Parliament elections in a couple of months’ time; the new Parliament can explore this matter, should it wish.

The second point is on the dual role of the Lord Advocate, who is the Scottish Government’s most senior Law Officer and principal legal adviser. Although not a member of the Scottish Government Cabinet, he or she may attend Cabinet in that capacity, and they represent the Government in civil proceedings. Given the inclusion in the 1998 Act of the role of the Lord Advocate, any formal separation of their responsibilities would require legislation in Westminster.

I note that my right hon. Friend referred to the fact that the hon. Member for East Lothian (Kenny MacAskill) has asked the Justice Committee of this House to consider the matter. The dual role is historical—it precedes the creation of the Scottish Parliament—and I imagine that unpicking the different roles would entail quite a complex debate, but that does not mean that it should not be considered. As I say, I mention that in a general way, not in relation to the matters of the specific case to which my right hon. Friend referred.

The third point I wish to touch on briefly in the two or three minutes I have left relates to the civil service in Scotland. My right hon. Friend is correct to point out that under devolution the civil service in Scotland is a reserved matter. The Constitutional Reform and Governance Act 2010 provides a statutory basis for the civil service code. This includes provision for the publication of a separate code of conduct covering civil servants who serve the Scottish or Welsh Governments. The Northern Ireland civil service is a separate organisation, but shares the same culture and values as set out in the civil service code. So although civil servants working to different Administrations are accountable to their own Ministers—in the case of Scotland they are accountable to Scottish Government Ministers, who are in turn accountable to the Scottish Parliament—with their own political priorities and mandates, the core values of the civil service support civil servants working across the UK.

The civil service has a number of safeguards in place to make sure that civil servants are able to raise concerns if they feel they are being required to act in a way that conflicts with the code and its values. Departments and agencies have a duty to make their employees aware of the code and its values. If a civil servant believes they are being required to act in a way that conflicts with the code or becomes aware of actions by others that they believe conflict with the code, their Department or agency must consider this concern and make sure they are not penalised for raising it. They can raise their concerns with someone in their line management chain or with nominated officers within their Department. If a civil servant has raised a matter in line with the relevant procedures and does not believe they have received a reasonable response, they can report the matter to the Civil Service Commission. It is independent of Government and the civil service. It is established by statute to provide assurance that civil servants are selected on merit and help to safeguard an impartial civil service.

I hope that these background points are helpful to my right hon. Friend and to the House in understanding the context in which he raised his important points. He has raised some serious questions. I am sure they will be widely debated in the weeks and months ahead, but for now I congratulate him on securing this important debate.

Question put and agreed to.