The Role of the Advocate General and its constitutional context
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Speech given to 1st year public law class at Edinburgh University.
I was pleased to accept the invitation today, not least because I am a graduate of this university. I have to bear in mind that, as first year students, most of you here today were in primary school at that time. You may just remember the opening of the Scottish Parliament, when the First Minister, Donald Dewar, quoted with great pride the opening words of the Scotland Act: “There shall be a Scottish Parliament” Had he continued to read from the rest of the Act, he would probably have lost the attention of his audience, but he would eventually have reached section 87: “In Schedule 2 to the House of Commons Disqualification Act 1975 (Ministerial offices) and Part III of Schedule I to the Ministerial and other Salaries Act 1975 (salaries of the Law Officers), after the entry for the Solicitor General there is inserted— “Advocate General for Scotland”.” And on that basis I get paid a monthly salary. The reason for this unprepossessing provision was that until devolution, the Lord Advocate, together with the Solicitor General for Scotland, advised the UK Government on Scots law. However, on devolution, those Law Officers became the legal advisers to Scotland’s devolved government. That constitutional change created a vacancy – for Scots law adviser to the UK Government, and a representative of the UK Government in court – and that is a post I have held since May last year, following the general election. On my appointment in May, a reporter from the local newspaper in my home town of Annan phoned to ask if I was the first Liberal Advocate General for Scotland. I was able to confirm that I was, but I could have added that it was also true that one third of all Advocate Generals to date have been Liberal Democrats.
One third of all the Advocate Generals to date have been women – the first was Lynda Clark, now Baroness Clark, appointed as the first Advocate General in 1999. The triumvirate is completed by my immediate predecessor, Lord Davidson, who was Advocate General until last year’s General Election. As students of public law, you will be aware of why governments need legal advice – you will have learned about the many possibilities for challenges to Government in the courts. The fact that government may be held to account in the courts is a fundamental aspect of the Rule of Law.
The role of lawyers in government is probably as old as government itself. The appointment of specialist “law officers” dates back to the 1400s. The office of Lord Advocate can be traced back to at least 1483, and the first appointment of an English Attorney General is recorded in 1461. So, as I said, on the advent of devolution, a vacancy was created for a Scots law legal adviser to the UK Government. As you will be aware from your studies, many areas of law, such as company law, banking, taxation, competition, insurance, road traffic law, drug regulation, defence, foreign affairs and social security - all reserved to the Westminster Parliament. In those reserved areas, the Government prepares legislation which will apply in Scotland, and it needs expertise to determine if and how that legislation will work in Scotland.
Also, Whitehall Departments, that is, UK Government Departments, when acting in relation to Scotland and making decisions which affect Scotland, are subject to the jurisdiction of the Scottish courts. My office provides those departments with legal advice. It is also my job, and the job of my staff, to keep Scots law at the heart of Government and ensure that when the Government makes decisions, that Scots law is part of its considerations.
In addition the Scotland Act gives the Advocate General some specific statutory functions in relation to the devolution settlement. For example, during court proceedings (not necessarily involving government) a question of the competence of acts of the Scottish Ministers may arise – a “devolution issue” – and when that happens, the devolution issue must be intimated to me, (in fact to my office here in Edinburgh). I then have to make a decision on whether to intervene in that case and make submissions to the court on the Government’s position on the point raised. That applies to both criminal and civil cases, although as a matter of fact most devolution issues intimated to my office since 1999 arise from criminal prosecutions. And most of those cases raise human rights points (that is, that a question of devolved or legislative competence arises because of an alleged breach of rights guaranteed by the European Convention on Human Rights).
I also have another kind of ‘policing’ role in relation to the Scotland Act, by way of powers to challenge Acts of the Scottish Parliament or actions of the Scottish Ministers – that challenge would take the form of a referral directly to the UK Supreme Court – that is, the court of final instance on constitutional issues. Both the Attorney General and the Lord Advocate have, individually, as well as myself, the same powers. This means that cases can involve the Law Officers representing both the devolved administration and the UK Government, and representing different parts of the United Kingdom.
It is one of the checks and balances built into the devolution settlement. A referral to the Supreme Court – and I should add that there has not yet been one referring an Act of the Scottish Parliament – would have the effect of preventing the Bill in question from being presented for Royal Assent until the case has been determined. And in the Scotland Bill currently before Parliament there is provision form either myself, the Attorney General or the Lord Advocate to refer individual clauses, rather than a whole Bill, to the Supreme Court. It is important to stress that the role of the Advocate General is not limited to the devolution settlement, and many of my functions are shared with the Solicitor General and Attorney General for England and Wales. Like myself, the Attorney General, Dominic Grieve, and the Solicitor General, Edward Garnier, are politicians, and I bring the Coalition dimension to the Law Officers. That is, our legal practice has been combined with commitment to political parties. Some people are perplexed by this arrangement, but for my own part I find that it works very well: it puts lawyers, who can apply their objective legal skills, at the heart of government, and who are trusted by the Government. They are trusted because they have a personal understanding of what the party, or parties, in Government wish to achieve, why they entered politics. Our core function is to ensure that Ministers act within the law. And if what you are saying to Ministers is “you can’t do this” that advice is coming from people they know, who have some empathy with their views.
To describe the work I do with the Attorney General and the Solicitor General, I have to refer to another matter which also perplexes some people – the convention on Law Officers’ advice. There is a document which is drawn to the attention of everyone entering government – although it is publicly available on the Cabinet Office website, and is updated from time to time – the Ministerial Code. The Code sets out the circumstances in which UK Departments must seek the advice of the Law Officers. It also sets out rules for the conduct of Ministers, and one of the rules is that advice given by the Law Officers should not, except in exceptional circumstances, be disclosed outside government, even to Parliament. Not only that, but even the fact that such advice has been sought should not be disclosed. One can see that if it were known that advice had been on sought on, for example, a provision in an Act of Parliament, that fact in itself might cast doubt on the lawfulness of the provision.
But where it is clear that the Government must have gone to the Law Officers, there are still some people within the legal profession and elsewhere who query the fact that this advice should be available to the Government of the day and is not available to inform debate among everyone else. You can readily understand that frustration, but everyone – individuals, organisations, companies and even governments – needs to have access to confidential legal advice. In the case of government, only if it is confidential can that advice be given freely and frankly. And the risk is, if Ministers and government departments think that their legal problems will become public, the temptation might be that they will not ask for advice. There would be a chilling effect on those considering the legality of their actions – and ultimately the Rule of Law would not be observed in government with any rigour or consistency.
That means that much of the work of the Advocate General, and the other Law Officers, by necessity, takes place in private. Going back many years to the 1970s, when Sam Silkin was Attorney General, he described a Law Officer’s advisory functions as being “little known and rarely visible to the public…[yet] certainly the most time-consuming, probably the most important, and possibly the most interesting of his responsibilities.” We can asked to give an opinion on almost anything, but in particular the sort of things which are referred to the Law Officers include: • Where action by the Government might have legal consequences with repercussions domestically, internationally or within the European Union; • Where there are doubts about the legality, constitutional propriety or vires of proposed legislation; • Where there are doubts about the legality of proposed administrative action; and • Where two or more departments of State disagree on a question of law.
More specifically, we may be asked whether a provision which is intended to be included in a Bill to be put before Parliament is in danger of contravening the European Convention of Human Rights. Or we may be asked whether an administrative practice carried out by a government department is compatible with the Convention – it may once have been considered compatible, but the Convention is a ‘living instrument’ – we may be asked if it continues to be compatible in the light of the development of human rights jurisprudence. Or we may be asked if a case should be defended before the European Court of Justice. The European Commission may have issued a reasoned opinion regarding UK legislation or implementation, or alleged lack of implementation, of EU legislation, suggesting that the UK is in breach of its EU law obligations. Do we have a stateable case before the ECJ? In some cases, for example, our case may be stateable, but the Law Officers may take the view that to present a weak case before the court would diminish the UK’s standing before the court. That is, we wish the ECJ to know that when the UK Government is addressing it, it is only when we consider that we have a good case to make.
Sometimes, a legal question may be brought to the Law Officers’ attention by Parliamentary Counsel. The Office of Parliamentary Counsel is where government Bills are drafted and it is a source of considerable expertise not only in legal drafting, but in the legislative process and the propriety issues that arise in dealing with legislation. Before a Bill is introduced in Parliament, Parliamentary Counsel will have briefed the Law Officers on points of legal policy or rule of law arising from that Bill.
For example, a department or their Minister may be keen to include, in a Bill, provision which has no legal effect at all. They may consider that it is an important statement to make in legislation – that is has ‘presentational value’. While I would accept that presentation has its place in a democratic legislature, and as politicians we understand its importance, it will fall to the Law Officers to persuade our ministerial colleagues that provision which simply ‘flap in the wind’ are not only improper, but can actually be dangerous. They may have unintended legal consequences, or the courts may feel obliged to find a way of giving some effect to them.
There are two other propriety issues which are regularly considered by the law officers: namely retrospection and early commencement. There is a convention within government that a Bill will not be commenced until two months after Royal Assent. If, in the circumstances, earlier commencement is necessary, then that should only be done with the express consent of the Law Officers. The convention on early commencement ensures that individuals who are going to be affected by new laws are given at least two months’ notice of a change in the law. There may, of course, be good reason on many occasions to commence provisions earlier than two months after Royal Assent. Emergency legislation is a very obvious example – that legislation would hardly be fit to address an emergency if it could not be brought into force as soon as possible. But, in the normal run of things, before consent is given, the Law Officers will consider factors such as the impact on individuals, whether notice is required to allow people to adjust to new arrangements, or whether the provision in question has been well flagged up in advance.
Consent of the Law Officers is also required where legislation is to be passed with retrospective effect. Of course retrospective legislation is in general terms considered to be a ‘bad thing’. It is generally reviled by lawyers, and of course, is curtailed by Article 7 of the European Convention. There are certainly times when it is clearly wrong to legislate with retrospective effect: for example, where criminal sanctions are applied to conduct which was not criminal at the time of that course of conduct. At the other end of the spectrum are provisions where it is clearly necessary to have retrospection in order to ensure fairness – for example where a law is found to be technically defective, it may be necessary to correct it with retrospective effect in order to ensure fairness to everyone who, in all good faith, have relied upon it.
In coming to a decision on consent to retrospective legislation, the Law Officers will take into account fairness to individuals and other parties who have relied on that particular law, the extent to which the retrospective change has been publicised in advance, and, of course, the effect on rights protected by the Convention on Human Rights. I should stress that some fairly uncontroversial forms of retrospective legislation are part of the ordinary business of government. For example, when the Chancellor of the Exchequer delivers his budget on Budget Day, as he will do next Wednesday, the substance of his proposals on taxation will not, by their very nature, have been revealed before that day. However, they may require legislation to put those tax changes into effect from a specific day, for example the first day of the tax year. That Budget speech is taken as notice that the tax will change and the legislation to give effect to that change may well have to be retrospective. Issues like early commencement and retrospection are brought to the Law Officers’ attention by lawyers in the various Government Departments, and the instructions given by those lawyers will address the kind of concerns which we as Law Officers are likely to have on the proposals. But the main effect of the conventions on early commencement and retrospection – that is, conventions where the consent of the Law Officers is required – is that the minds of those civil servants preparing and instructing the legislation will be concentrated by the knowledge that they have to put these matters to the Law Officers. They know that the Attorney General and I both sit on the Cabinet Committee which deals with legislation and has the final say on whether a Bill can be introduced in Parliament, and that we will not allow a Bill to proceed to Parliament unless our concerns on the law, particularly on human rights, EU law, devolution, and retrospection and early commencement, are addressed.
I mentioned ECHR rights in the context of retrospection, but in fact any legislation which raises ECHR issues (or any Government action or practice) may be brought to the attention of the Law Officers for an opinion. When a Government Minister introduces a Bill in Parliament, he or she must sign a statement in terms of section 19 of the Human Rights Act 1998 – that is, that in the Minister’s opinion, the provisions are compatible with the Convention rights.; Although it is for the Minister at the end of the day to be satisfied that the provisions are compatible, the Law Officers will have seen a human rights memorandum prepared by the Department’s lawyers and they will expect that no ECHR compatibility questions are still outstanding on introduction of the Bill. Of course, as Law Officers we stand ready to advise on ECHR issues which may arise during the course of the Bill’s passage through Parliament.
To carry out all these functions it goes without saying that I need an office. In fact, in physical terms, two offices: one in Dover House, co-located with the Scotland Office in Whitehall in London, and one in Victoria Quay, co-located likewise with the Scottish Government, in Edinburgh. There are roughly 1300 lawyers in the Government Legal Service, and about 30 of them are Scots lawyers who work in the Office of the Advocate General. I say “about” because the number of staff we need varies from time to time, but I know, personally, all the lawyers who work in my office and we meet regularly to discuss legislation which they are working on, or we meet to discuss litigation – actions raised by the Government or against the Government - which they are preparing for court.
The Office of the Advocate General is a separate government department in its own right. It is a very small department so, along with the Scotland Office, we share the resources and other facilities of the Ministry of Justice. In addition to my specific duties as a Law Officer, I have a general role as a Government Minister. I am appointed by the Prime Minister, and as a member of the Government might be asked to do all sorts of things – such as giving a speech, performing a ceremonial function or taking legislation through the House of Lords. And, as a result of an offer I made to the Deputy Prime Minister, I have been involved in the legislative programme in the Lords, and that includes some of the more exciting and innovative constitutional proposals by the Coalition Government – sitting in the House of Lords through night in the Bill to have a referendum on the voting system; or the introduction of fixed term Parliaments.
I also have a role as a spokesman in the House of Lords for the Wales Office (a role which arose when a former law officer, a Lord Advocate, said he did not have enough work to do). I mention that because it brings me back to the devolution settlements, and a peculiar feature of devolved government in the UK – that it is asymmetric. That is, each of the three devolution settlements is different, reflecting the political, cultural and historical circumstances of the nations which constitute the United Kingdom.
In Scotland, we have substantial legislative devolution – the Scottish Parliament can pass primary legislation in fields in which it has competence. Certain competencies are reserved to Westminster, and, subject to other legal constraints, the Scottish Parliament has, otherwise, freedom to legislate as it sees fit. Something similar pertains in Northern Ireland, with some important differences. For example, the Northern Ireland Assembly has the legislative competence to deal with time zones. Apparently, in the nineteenth century, Ireland was in a different time zone. An Act of 1915 introduced measures for one UK time zone, but in the Government of Ireland Act 1920 it was not thought necessary to reserve time zones. In Wales there is a different devolution settlement – with some continuing Westminster involvement in the legislative process (although that will be much less so following the referendum in Wales earlier this month). The structure of the settlement is also fundamentally different, with specified matters being devolved to the Welsh Assembly, and the default position for everything else being that it is not reserved.
There is, as yet, no devolution for England. However, it is worth mentioning in passing that the Greater London Council enjoys a degree of administrative devolution, but not yet any legislative function. It cannot pass legislation, but it does exercise functions conferred upon it by Parliament. Underpinning these settlements, is the fact that, unlike the devolved Parliaments and Assemblies, the Westminster Parliament enjoys complete legislative sovereignty. It can make and unmake any law it wishes – and the only limit to its powers is that cannot stop itself legislating on something for the future. That is, it cannot bind itself.
By contrast, the Scottish Parliament and the Scottish Government are creatures of statute, and their powers and competence are prescribed by the Scotland Act. This judicial scrutiny of its actions is not uncommon to Parliaments around the world, but it distinguishes the Scottish Parliament from the UK Parliament, whose laws cannot be set aside by the courts (although you might note the special case of EU law, which I’m sure has been the subject of another lecture to you).
In February 2000, not long after the Scotland Act came into force and the Scottish Parliament started passing legislation, Lord Rodger, then Lord President and now a Justice of the Supreme Court, reminded us of the relative competency of the Scottish Parliament in the context of a review of legislation on fox-hunting, Whaley and others v Lord Watson and the Scottish Parliamentary Corporate Body, an appeal to the Inner House, and he noted that the Lord Ordinary had given “…insufficient weight to the fundamental character of the Parliament as a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law.”
The Advocate General for Scotland is also a creature of statute, in fact the same statute, and also, like other lawyers, an officer of the court. My role, in a nutshell, is to assist the court in upholding the law – like the other Law Officers, in government, we are Ministers for “Rule of Law”. “Rule of Law” is a phrase with great resonance, and it is not simply a pious aspiration – I cannot stress enough that it part of the daily bread and butter of my office. To illustrate this point, consider the Human Rights Act 1998 and the European Convention on Human Rights. You will understand, as students of public law, that not only because of the Human Rights Act, but also because the UK is a signatory to Convention, there will be times when a decision of a court obliges government to change its policy.
Last year here in Edinburgh, I attended a convention on Human Rights at the Scottish Parliament, and there I met the UN High Commissioner for Human Rights, Navi Pillay. She is a distinguished South African lawyer, and I reflected on my experience as a Minister in the Scottish Government, when I was probably the first Minister in Britain to be subject to a decision of the courts under the Human Rights Act, in the Starrs and Chalmers cases, and, overnight, I had to suspend temporary sheriffs from sitting. I put this view to her: as a government Minister, one has to follow the law and if the court tells us what the law is, the Minister is bound by that. She told me that that was music to her ears because in so many countries which she visited, it was precisely the point she hoped to convey to governments.
You may have followed the debate in Parliament and in the media on the question of whether convicted prisoners should be entitled to vote in Parliamentary elections. Some weeks ago, a Parliamentary Committee took expert evidence on the issue, and among the witnesses was Lord Mackay of Clashfern. Lord Mackay is active in the House of Lords, and in Margaret Thatcher’s government in the 1980s, he was Lord Advocate and later Lord Chancellor. He made this point, which I think is worth quoting in full: “I would just like to say that our country has embraced the rule of law for many, many generations and it still is bound by the rule of law. Therefore, when we have taken on legal obligations, as we have under the Convention of Human Rights and Fundamental Freedoms in Europe, the rule of law requires us to obey the courts that are set up under that Convention whose judgments are binding. I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law. Indeed, that is how it happens.”
I would say “hear hear” to that because I very much believe that politics and law are not in conflict, because, in our country politics should carried on under the rule of law. That is the thought I wish you leave with you today.