| THE CHAIRMAN: Can I thank you very much
for coming. It will be very useful for us to hear your
views on the settlement. I wonder if you could start off
by being so kind as to introduce yourself and your colleagues
for the sake of the record.
MR BOYD: My name is Colin Boyd. I am Lord Advocate.
On my right is Patrick Layden who is my Legal Secretary
and Colin Miller who was here this morning who is looking
after all the witnesses from the Executive who appear
before you. I should say he comes from the Legal and
Parliamentary Services Constitution Unit.
THE CHAIRMAN: Really what we are looking at is the
fact that the Welsh settlement does not contain primary
legislative powers and the Scottish one does and what
we are interested in I think is the effect of that on
the way in which the settlement is working. I wonder
whether you could comment first perhaps on the clarity
and the stability of the Scottish devolution settlement.
MR BOYD: Well I think that one of the key issues that
was settled early on in deciding on the legislative
package was to determine that the Scottish Parliament
would have legislative competence in all areas except
those that were reserved and essentially those that
were reserved were set out in schedule 5. That I think
was important because in effect it said you can do anything
you like provided you keep outwith the reserved areas
in schedule 5 and subject also of course to the European
Convention on Human Rights and EC law.
So that was the starting point. How it has worked in
practice is that we start from the assumption that we
can do things. If we are contemplating action then clearly
the initial thought is that this is within legislative
competence but clearly we then go through a series of
procedures to ensure that first of all the principle
is within devolved competence and secondly that the
detail does not stray in that way - and I can elaborate
on that if you wish. So far as making a comment on the
robustness as it were of the settlement or perhaps the
stability of it I think that it has worked remarkably
well. No doubt you have had figures of the quantity
of legislation that has been passed. Clearly quantity
doesn’t necessarily equate with quality, but nevertheless
it does show that the Parliament has a wide area of
competence. Much of what we considered were areas of
Scots law which were ripe for reform have now been reformed
or will be reformed and the relationship with the United
Kingdom Government and Whitehall has I think been a
very positive one so far as I can tell at virtually
all levels.
THE CHAIRMAN: Perhaps I should have asked you to start
off with how has the settlement changed your own position
from what it was before?
MR BOYD: Quite markedly. The position of Lord Advocate
goes back to the 15th Century I think, so not quite
as old as the Lord Chancellor but getting there and
over the centuries it has changed quite considerably.
Immediately prior to devolution the Lord Advocate and
the Solicitor General for Scotland were two of the four
UK law Officers who were in effect responsible for advising
the UK Government on all matters pertaining to Scots
law and also the Lord Advocate is responsible for the
prosecution of all crime in Scotland.
That has changed in one way - not the prosecution,
that has remained the same - but so far as the legal
advice aspect has changed that of course has now switched
to the Scottish Executive and the Lord Advocate is now
the principal legal adviser to the Scottish Legal Executive.
I mean on one view one might think that that really
is simply the transfer of allegiance as it were, or
functions from one Government body to another, but I
think the change has been much more complex and that
is because of the fact that under the devolved settlement
legal issues are much more to the fore than they were
perhaps at a UK level.
THE CHAIRMAN: Why?
MR BOYD: Well because, if Parliament wishes to legislate
then it has to do so within the constraints of the Scotland
Act. I think also the fact that I am in Edinburgh and
not going down to London and there is a much more immediate
connection with the Civil Service, with other Ministers
and with Parliament means that I am called upon on a
much more regular and frequent basis than was the case
before. I attend Cabinet so I am aware of the tenor
of Cabinet discussions and in these situations Ministers
can and often do buttonhole you and ask for advice off
the cuff so to a certain extent it is fighting them
off and saying I will think about it but the immediacy
of requirement for legal advice, the number of issues
where that is required has I think put the Lord Advocate
in the position of a much more central role in terms
of the Scottish Executive than it ever was in the UK
Government.
MR ROWLANDS: Can I just ask, you said that legislation
was ripe for reform. We have been told about 60 Acts
will have gone through in four years. Are the vast majority
of those amending existing legislation as opposed to
greenfield legislation, bringing up this backlog of
previous Scottish legislation that needed changing,
amending, to be brought up to speed or brought up to
date.
MR BOYD: Well we have abolished the feudal system,
or we will have, which was a major change so I am not
sure that we would necessarily say that that was simply
an amendment. The Adults with Incapacity Act put in
place a new reform to deal with adults who were incapable
of looking after themselves and I think it is fair to
say a lot of it has been greenfield, as you would put
it although clearly there has also been a lot of amendment
issues.
MR ROWLANDS: But the majority of legislation would
have been amending previous, bringing up to speed or
bringing up to date previous legislation that you hadn’t
got into a typical Westminster programme, you are obviously
breaking ground legislatively but how much new ground
are you breaking?
MR BOYD: I actually find that difficult to say, I will
think about it to see how much of it is new. I think
it is probably fair to say a lot of it has been bringing
up to speed. I mean I think of some of the work in local
government for example, a general power on local authorities
to do things, was an important amendment for local government.
Ground breaking in some ways but on the other hand not
of major significance as it were. The additional education
support for children who have special needs: again I
suppose fairly low key but important. On balance land
reform was obviously significant, agricultural holdings
I would have thought fairly significant as well, some
of the stuff in criminal justice again fairly significant,
others more reform based.
MR ROWLANDS: You said legal issues had come much more
to the fore because of the legislative capacity of the
Scottish Parliament. Does that mean that if we recommended
that there be primary legislative powers for a Welsh
Assembly that we would have a Welsh Lord Advocate to
go with it?
MR BOYD: Well I think that’s probably right. I
think you would have to have access to legal advice
which was sympathetic at least to the aims of those
who were putting forward the majority of the legislation,
in other words the Executive.
MR ROWLANDS: We have a Counsel General who advises
but I don’t know if you know him, Mr Winston Roddick.
MR BOYD: Yes I do.
THE CHAIRMAN: Does he play the same role or would you
say a rather different role. Would we re-invent him
or would we have to have any other person as well?
MR BOYD: I am aware of some of the difficulties that
have perhaps surrounded his position and I wouldn’t
want to get drawn into commenting on that. I think if
you were contemplating a legislative Assembly with primary
legislative powers presumably there would be some re-organisation
of the corporate nature of the Assembly and possibly
a division then between the Executive and the Assembly
- in that situation I think you would have to sort out
who advises whom.
THE CHAIRMAN: But you don’t advise the Parliament,
you advise the Executive?
MR BOYD: No, that’s right.
THE CHAIRMAN: And of course Mr Roddick and the suggestion
he would be responsible for the Prosecution Service,
it would be a different situation anyway?
MR BOYD: I assumed that it was the Welsh Lord Advocate.
MR ROWLANDS: It would be a shorthand way of saying
we have to invent someone additional to the Lord Advocate.
MR PRICE: It is sometimes said much of Scottish legislation
is attributable to the fact you have a separate, distinctive
legal system. To what extent is that really true? Is
it that the legal system is merely something which you
take account of because you have a political need for
the legislation or is some of it actually driven by
having that separate legal system and if so to what
extent?
MR BOYD: Some of it certainly is driven by the fact
we have a separate jurisdiction. The feudal system legislation
for example, land-holding and much of the stuff of the
criminal justice field can be attributed I think to
the fact we have a different legal system but a lot
of it is also due to the fact we have a different administrative
structure so if we are talking about the Bill I just
mentioned, additional support. We changed the name of
it to, Education (Additional Support for Learning) Bill
which really is just talking about giving extra support
to children who require it because of special educational
needs. That is because we have our own education system
and needed to put in place better arrangements for supporting
children within that system.
The same is true within the Health Service, perhaps
less so, because the Health Service is perhaps more
unified than the education system and yet we have our
own Scottish Health Service. Local government is different
here and so we have our own local government legislation.
The planning system very much mirrors what is done in
England and Wales but we have our own Planning Act and
our own administrative system which supports that, so
a lot of it is simply because we actually have our own
administrative structure within the judicial system.
MR PRICE: If one tried to quantify that difference
between things that are defined purely by having a separate
legal system such as your feudal point and land tenure
and so on, as compared with things which are driven
from another direction, one of the various other reasons,
can one quantify in some way, and I am not saying number
of clauses or anything like that, but just volume of
work in a very broad British fashion?
MR BOYD: Are you talking about pieces of legislation,
of the 60 how much....
MR PRICE: Whatever definition of quantity you would
like to use that comes to mind.
MR BOYD: It is very difficult....
MR LAYDEN: I use the draft legislation, I notice one
of the differences is that because we have a separate
Court procedure and a separate Court system, some of
our legislation reflects that. That is not the whole
answer because the great post second world war Planning
and Housing codes, they were all done separately for
Scotland and England and I think the Secretary of State
for Scotland ran everything in Scotland whereas there
are functional responsibilities in the Whitehall Departments
for England and Wales. So the tendency was simply to
group all the legislation which was functionally different
in England and Wales under the heading Secretary of
State for Scotland. That is not really helping you because
it is perfectly possible to have a piece of UK legislation,
a UK Finance Act which is the same throughout the United
Kingdom which will be enforced in the Scottish system
with the different procedures which operate in Scotland
so there is a limitation on how far a separate legal
system requires you to have separate legislation. I
don’t think one can arrive at a sort of a priori
guide as to how you go one way or the other way, we
are where we are. I think in future the difference will
be largely because of the legislative competences which
we have been given, we have legislative competence over
planning and there may be a tendency for it to diverge
from the previous situation almost identical to the
English, similar with other areas, we can now do our
own thing, the physical pressures will be different
and the administrative arrangements will reflect that
so one can see a developing legal system would develop
from a different set of legislative competences.
MS SUGAR: Can I change the subject slightly and ask
about openness and access to information. One of the
things that I was impressed with was the fact that people
have a right to petition the Parliament but I wasn’t
clear how that interfaces with Cabinet responsibility
and individual Ministerial responsibility, whether you
can talk about any good practice that you feel has been
introduced here in Scotland with the way the Cabinet
operates and the way the Cabinet interfaces with the
Parliament?
MR BOYD: I am not too sure I am the best person to
ask, I think perhaps Patricia Ferguson may have been
the better person to ask about the interface between
Cabinet and Parliament. I sit in Parliament and I can
speak but I don’t have a vote so I don’t go
there too often. I have had some contact with the Petitions
Committee because a number of petitions have been presented
which impinge on the Prosecution function, in particular
ones in relation to the Prosecution of individuals for
breach of section 1 of the Road Traffic Act, Death by
Dangerous Driving and there has been a change in my
policy in the way in which I prosecute them. It has
not been driven solely by the Petitions Committee but
the fact that the Petitions Committee were focusing
some public concern about it gave rise to a consideration
within the Crown Office and the Procurator Fiscal Service
as to whether or not the good practice which we had
and had been continuing to implement was sustainable
in the long term and there was some change made to that.
So that is I suppose one way in which the Petitions
Committee can have an influence on one particular area
of Government.
So far as the Cabinet is concerned, I think it is probably
correct that Cabinet papers are treated in the same
way as UK Cabinet papers are, they are restricted, they
are not published and we wouldn’t expect them to
be published. Meetings of the Cabinet are confidential,
other than what we choose to put in the public domain.
So far as the relationship between the Cabinet and
the legislature is concerned, I think it is fair to
say that because of the Parliamentary arithmetic in
terms of not one Party having a majority, because of
the enhanced role of the Committees in the process and
I think probably because the Back Benchers feel that
they ought to have a greater say in what is being done,
the Executive is more subject to the overall Parliamentary
process than is perhaps the case in the United Kingdom
Parliament. Beyond that I don’t really feel I am
qualified to say because I don’t have the day to
day contact that my colleagues would have with say Back
Benchers and nor do I, although I am a Member of one
of the coalition Parties I am not really within that
process either - so again I can’t really make much
of an informed comment on it.
THE CHAIRMAN: You are a bit like the Attorney General
in that sense?
MR BOYD: Yes.
THE CHAIRMAN: And you have the same dichotomy approach?
MR BOYD: Yes.
SIR MICHAEL WHEELER BOOTH: Lord Advocates in the past,
I mean Lord Mackay came to Mrs Thatcher’s attention
as Lord Advocate. He was on various Cabinet Committees
and his advice was taken, but are you not in much the
same position viz a viz the Scottish Executive now to,
shall we say, Lord Mackay to the British Cabinet then
in the sense you carry out your legal functions and
responsibilities, do you also advise the Government
on a confidential basis for prosecutions when they want
it, is that the position here?
MR BOYD: Yes I think that’s right.
SIR MICHAEL WHEELER BOOTH: If there was a change of
administration and, shall we say, an SNP administration
you would cease to be Lord Advocate?
MR BOYD: That's right.
SIR MICHAEL WHEELER BOOTH: Is there also a convention
about advice given, remember advice that the Attorney
gave to the Trade Secretary...?
MR BOYD: Yes.
SIR MICHAEL WHEELER BOOTH: Which I think was leaked,
there was a frightful cafuffle because there was a breach
of this convention?
MR BOYD: Indeed.
SIR MICHAEL WHEELER BOOTH: And the same conventions
would apply here?
MR BOYD: Yes the Ministerial code which we are bound
by, at least in that regard, is really lifted from the
UK Ministerial code.
SIR MICHAEL WHEELER BOOTH: But the Parliamentary draftsmen
for the Scottish Parliament work to you?
MR BOYD: Essentially yes, yes they do.
SIR MICHAEL WHEELER BOOTH: They are based here in Edinburgh?
MR BOYD: Yes.
SIR MICHAEL WHEELER BOOTH: They obviously have lots
of links with London?
MR BOYD: Yes.
SIR MICHAEL WHEELER BOOTH: And if it is a Scottish
Bill that is being put forward in Westminster is there
still a sort of double office that is between Edinburgh
and Lord Advocates Chambers or something it was called
just round the corner from Westminster?
MR BOYD: Well there is, the Lord Advocate’s Department
in Whitehall was latterly Carlton Gardens, it is now
closed down.
SIR MICHAEL WHEELER BOOTH: It has closed down?
MR BOYD: And the people who were there came up to Edinburgh,
not all of them but most of them came to Edinburgh.
Patrick Layden became my Legal Secretary or Legal Secretary
to the Lord Advocate and the Parliamentary draftsmen
split off into the Office of the Scottish Parliamentary
Counsel but still within the Lord Advocate’s general
remit. So far as the legislation in the UK Parliament
which is Scottish, there is one Bill which may be of
interest to you and that is the Proceeds of Crime Act
as it is now. There was consideration given as to whether
or not there should be the Proceeds of Crime Act coming
through the Scottish Parliament. The view was taken
that because some of it related to Misuse of Drugs and
Misuse of Drugs was reserved then we couldn’t legislate
across the whole field although we could have sort of
ordinary crime as it were but we also then took a policy
decision that we wanted to ensure there was only one
Proceeds of Crime regime, so on that basis there was
a Sewel motion which you probably heard about this morning
and we agreed to effectively come within the ambit of
the UK Government’s legislation. However, we then
seconded both policy and drafting capacity into the
Bill team and the parts of the Act which refer really
to Scotland were very much driven by the consultation
process particularly with the Deputy First Minister
and with myself because I have responsibility for both
the Civil Confiscation Unit and the Criminal Recovery
Unit which are effectively its Estates Recovery Bureau
so what, on one view might have turned out to be a rather
complicated arrangement with two pieces of legislation
then became one because we agreed that they should be
in the policy and Parliamentary draft support to enable
that to happen.
SIR MICHAEL WHEELER BOOTH: Lord Advocate, that was
a very interesting reply, you have made it much clearer,
the feel of it, but can I ask you a connected question
to my last one. In Wales the evidence is strong that
the effects of devolution has been a considerable growth
in lawyers serving Governor and Assembly. Have you seen
the same thing here in Scotland and is it a necessary
concomitant of devolution?
THE CHAIRMAN: Not necessarily undesirable.
SIR MICHAEL WHEELER BOOTH: I don’t think that
goes on here.
MR BOYD: There has been a growth in the number of lawyers
in the Executive. I don’t have the figures, I can
certainly get them to you, both in the solicitors office
as well as Parliamentary draftsmen. Having said that,
it is not always just devolution that drives growth
in lawyers, I mean the growth in serious crime has meant
we have now increased the number of Prosecutors by something
like 35% over six years.
MR JONES: One small point about your previous point
in terms of the best of both worlds, in terms of the
Legislative Bill and there is an example of the Advertising
and Promotion Bill, the Bill being prepared in Scotland
and a Private Members Bill in Westminster which would
seem to give support - in which case you have suspended
the Bill in Parliament here and also reserved the right
to bring the Bill back again afterwards. What happened
eventually?
MR BOYD: The Executive policy is that they would very
much prefer to see UK legislation on this issue and
to that extent would support the Bill being passed at
Westminster. I have no doubt that if that Bill failed
or was not implemented the pressure for legislation
would rise again here probably to an extent that it
would be unstoppable.
THE CHAIRMAN: When you sort of open it up, you said
here in Scotland we start from the assumption we lose
legislative competence and then you said that there
are constraints and perhaps we should have constraints,
should we look at some constraints?
MR BOYD: By all means do so. Do you wish me to lead
off....?
MR ROWLANDS: Schedule 5 looks initially simple but
when you start to read it, it’s quite complex.
Railway transport for example, it is amazing what you
can and can’t do on many levels. I just wondered
if you could remark on these grey areas and ragged edges?
MR BOYD: Perhaps I can highlight some of the ragged
edges but without necessarily giving a solution to it
all. Let me give you an example. Asylum seekers, which
is obviously topical, has issues for example about housing.
Now is housing for the asylum seekers reserved or devolved.
If you take the view it has to do with immigration,
it is reserved, if it is housing it is devolved. The
same is true of education, is educating the children
of asylum seekers, is that reserved or devolved. Housing
them in secure units or prisons, prisons obviously are
devolved but again because of asylum, of nationality
being reserved and asylum being reserved then the question
is, is that devolved or reserved. I think we have taken
the view in relation to housing that depending on the
circumstances that that probably relates to the devolved
area of housing. On the other hand housing asylum seekers
in prisons which are run by the Scottish Prison Service
and where you then have to have perhaps a different
regime that it is pretty difficult to divide up the
person to that one regime imposed by the Home Secretary
and another to the regime imposed by the Justice Minister
here so we have taken the view in these circumstances
they would be devolved. The only guidance we have is
section 29 of the Scotland Act and are working our way
through this. That’s the sort of one area where
there are...
THE CHAIRMAN: Can we just take that area. You have
a problem with asylum seekers and housing. How do you
try and resolve this, do you produce a Bill up here,
do you talk to people in Westminster, how is it done?
MR BOYD: Well first of all the policy people come up
with what it is they want to do. Sometimes in these
areas asylum seekers will come from the Home Office
in the first place with proposals from them as to how
they want to deal with it. They will then speak to our
Justice Department and at that level officials may agree
that everything is reserved or everything is devolved.
There isn’t really an issue until perhaps it goes
to lawyers who say actually you should have thought
of this but hopefully at that stage because it presumably
would have been obvious, if it is not obvious they will
seek advice from the Solicitors Office here and presumably
also with the Home Office legal advisers in the hope
that would resolve the issue. If it doesn’t then
at that stage it might come to Law Officer’s attention,
and again one would hope that that resolves it. If it
doesn’t then it will presumably take a number of
routes, one is back down the official route as it were
to try and sort out or alternatively it goes up to Ministers
and they try and agree. There will also at some stage
be discussions between law officers as well. That’s
the kind of synopsis of what in essence may be a rather
administrative issue rather than legislation because
we are talking about asylum and I think it is true to
say we have had some legislative issues but some of
the ones I have been thinking of have been statutory
instruments and that sort of thing.
THE CHAIRMAN: Has there been a case where it has gone
up and down and back up again?
MR BOYD: I am just trying to think...
MR LAYDEN: We have an issue over the issue of regulatory
powers where north and south we had to put a regime
in place before the Human Rights Act came into force
for various things being done by a whole range of Agencies.
Questions arose between administrators north and south
of the border as to whether some bits of the legislation
would be devolved or reserved. The question went to
both sets of Law Officers and the Executive and the
Whitehall Government then took different views as to
what they were entitled to do, as to what the Scots
were entitled to do because there was never any question
of what Westminster were entitled to do because they
can do what they like in that because there was the
possibility of a stand up fight in constitutional terms
when people came off on judicial Committee.
MR BOYD: I am sure I wouldn’t refer to it as that.
MR LAYDEN: I have heard a lot of questions on the devolution
issue, the matter was put to the politicians and for
a number of reasons it was decided we wouldn’t
have a dispute. We didn’t need to have a dispute
over this, there was never any doubt that Westminster
had legislative competence. The time-scale of getting
the legislation prepared before October 2000 was such
there was no time to have a long drawn out conflict
and the fact that Westminster, has legislated in an
area where we think that we have got competence does
not prevent us from legislating in that area in the
future. So just as in the case of Sewel motions, we
lose nothing if Westminster legislates in a particular
way because the Scotland Act and the competence in it
remains the same and so we, if you like, live to fight
another day. We say we don’t have the time or the
inclination to have a fight about this now even supposing
for other reasons we wanted to but we haven’t lost
anything because if we come back in five years time
to a similar issue then we still have the competence
to legislate.
THE CHAIRMAN: Has any dispute got to the door...
MR BOYD: No.
THE CHAIRMAN: Not even through?
MR BOYD: No, I can’t think of anything that has
got that far.
SIR MICHAEL WHEELER BOOTH: If there was administration
of a different political colour, one end or the other,
I suppose the likelihood of a potential quarrel about
values would become greater?
MR BOYD: Yes, there is no doubt about that. I think
that one of the strengths of the system at the moment
is that broadly they are the same colour and that has
meant I think we have been able to put in place much
more easily than would have been the case, if there
were different, administrative procedures which one
might hope would carry us through into another regime
as it were so that the officials know each other, there
are established ways of doing things and that even if
there was a different complexion then at least some
of them would continue.
THE CHAIRMAN: How far is that formalised now?
MR BOYD: Well there are memoranda of understanding
in various areas. There are none in my area so I can’t
really speak to that myself but they were certainly
formalised in that way and it may be that one of our
other witnesses would be able to give you better evidence
on that.
MR ROWLANDS: Would it be right to represent schedule
5 as listing all those responsibilities and powers the
old Secretary of State didn’t have?
MR BOYD: That’s certainly the foundation of it.
MR ROWLANDS: And therefore there was no measure - there
wasn’t any attempt to re-open the argument on what
the Secretary of State should or shouldn’t have
done and therefore the Scottish Parliament should or
shouldn’t have?
MR BOYD: I was reminded of one area before I came down
here where there had been some issue about who should
have responsibility and that was in the area which I
think you have some interest in, in transport, financial
support for shipping services between Scotland to places
outside Scotland. It is reserved in Schedule 5 but for
various reasons both the Northern Ireland Executive
and the Scottish Executive wished there to be a ferry
between Campbeltown and Ballycastle. However, that was
reserved. It is fair to say the UK Government weren’t
as interested in that proposition as we were or for
that matter the Northern Ireland Executive although
to be fair the Scotland Office did help facilitate this
but part of the settlement as it were on that issue
was that there would be an order in section 30, sub-section
2 which transferred responsibility to the Scottish administration.
MR ROWLANDS: And this is the only order issued under
30 since the beginning of the Parliament.
MR BOYD: No, five.
MR ROWLANDS: What were the other four?
MR MILLER: Not on the same scale, nothing of that same
scale. The other four are all relatively minor adjustments
of settlement in both directions, if it would be helpful
we could send you details.
MR ROWLANDS: And section 63 allows you to gain additional
powers. Have you collected any of those, in the last
four years?
MR BOYD: I think fairly minor...
MR MILLER: There have been a significant number of
transfers under section 63 of functions from the UK
Ministers to Scottish Ministers. There was a large number
of transfer of functions orders at the time of devolution,
but there has been a steady trickle I think since.
MR ROWLANDS: Again can you send them.
MR MILLER: Surely.
THE CHAIRMAN: Do you have anyone in Scotland such as...
MR BOYD: I am just trying to think. I would know about
it more often in the criminal justice field and we have
agreed to certain changes in sexual offences to be pursued
as it were through the UK Parliament but actually that’s
not an answer to your question. I can’t think of
any myself.
MR ROWLANDS: So in other words you have got the powers
to get on with it?
MR BOYD: It is quite possible that, you know, one Minister
said to another, why’d don’t you do something
in that area and whether it has been formalised in the
sense of a letter coming saying we would very much like
you to legislate in this area, I don’t know.
MR PRICE: On the ragged edges question which we were
pursuing earlier you indicated practical solutions were
found in all cases, if one tried to draw some principles
out of it there may be a principle lurking underneath
that pragmatism, would it have a practical impact itself
in the sense of which part of the legislation and which
end would have the greatest practical impact, say for
example on your prisons case, the practical impact in
running a Prison is much greater than the asylum angle,
is that a principle you can see is running, underlying
this pragmatism?
MR BOYD: I would hesitate to go along with that and
I was I should say anticipating a question along those
lines and trying to think whether or not there is some
real underlying principle that one can say, yes, we
apply this kind of test. To be plain about it, I don’t
think there is and that may be a criticism of the way
in which we operate. We try to apply the test that would
be set out in section 29 of the legislative competence
and the first question is effectively what would be
the pith and substance of the legislation but then of
course we would also have to look at what the impact
would be on reserved issues and that is sometimes a
much more difficult test.
MR ROWLANDS: It is a question of whether you act, remove
the Lord Advocate as the head of the system of criminal
prosecution?
MR BOYD: Yes, they can’t do that.
THE CHAIRMAN: That we are certain about?
MR BOYD: Yes, they certainly couldn’t do that.
MR LAYDEN: Perhaps on Mr Price’s question, looking
at asylum and housing, the Scottish Bill which says
homeless people in Scotland shall be entitled to be
housed by the nearest local authority would be, we would
say purely devolved and if it happened to apply to people
who were homeless but were asylum seekers one could
mount the argument that was a devolved measure which
had some effect, some minor effect on the reserved matter
of asylum seekers, but not in such a way which would
interfere with any reserved policy on the matter. If
on the other hand our Bill said asylum seekers shall
be entitled to special housing provision in Scotland
in the teeth of a UK Bill which said asylum seekers
will be housed in special centres then it is much easier
to say that although it is nominally about matters of
devolved Scottish housing, it is having a much more
serious effect on asylum. So you move through the spectrum
of levels which are very clearly in the devolved area
right through to matters which start off nominally devolved
which are clearly designed to have an effect on reserved
ones. That spectrum will depend very much on the piece
of legislation and the background against which it is
operating.
MR BOYD: If I can perhaps finish that off. On the prison
aspect which is one of the other ones, clearly if we
said that we were going to house asylum seekers who
happened to be in Scotland within prisons then that
would be outside devolved competence. If, on the other
hand, the Home Secretary says it will be competent for
Courts to grant a warrant for their custody within a
Prison, then they do so within our Prisons. If he wants
to go and build his own Prison or his own camp this
is another matter so when we were looking at the Prisons
aspect it was the practical issue, these are our Prisons
and you can put in a different regime for one or two
or ten or 100 or however many.
THE CHAIRMAN: That is why your seat on the Judicial
Committee is very important.
MR BOYD: Sorry, I missed that.
THE CHAIRMAN: Your representative on the Judicial Committee.
MR BOYD: Yes.
THE CHAIRMAN: And that is why he is so important, it
depends how you start the thing?
MR BOYD: Yes.
SIR MICHAEL WHEELER BOOTH: You mentioned the Home Secretary
in Wales. We have had quite explicit evidence of tensions
between the Home Office and the Welsh Executive both
at Ministerial and at official level and it has been
very clear. Is it the case in Scotland because of the
nature of your settlement that you have had perhaps
less such tensions with individual Departments or are
there tensions despite the fact the settlement is perhaps
slightly better, slightly clearer and better thought
out?
MR BOYD: The clear impression that I have is that the
Department here, Departments of the Executive have a
far better relationship with their counterparts in London
than is the case with Wales but clearly there are tensions
from time to time, you wouldn’t expect anything
else. Specifically with the Home Office, I am not aware
that there has been a particular problem. I think I
am aware of criticism that we perhaps get told things
at short notice but I think frankly that is because
of the way the Home Office works rather than because
of any intention of keeping the Executive in the dark.
THE CHAIRMAN: Do you ever have to deal with the Secretary
of State for Scotland?
MR BOYD: Personally no but I know the First Minister
does so on a very regular basis and other Ministers
I think do as well. Personally I haven’t had any
great dealings with her.
THE CHAIRMAN: Have you had any disagreements or...?
MR BOYD: No, none at all, my contacts on the whole
tend to be with the Advocate General and with the Attorney
and clearly the Solicitor General as well. You may be
interested, just briefly, so far as legislative competence
is concerned and checking on that, the memorandum on
legislative competence will go to the Advocate General’s
office really at the same time it goes to the Presiding
Officer before introduction so that the Advocate General
has the ability to make comments if she so wishes before
certainly or during the process so that if she took
the view that there were parts of the Bill that were
outside competence we would get early warning of that
and then be able to put amending clauses into the Bill.
Obviously if she took the view that it was totally outside
competence then we would have to take a decision as
to whether to proceed with this legislation and allow
the Advocate General to refer the matter to the Privy
Council or to withdraw it but we have never had that
sort of disagreement.
The ones where it may have occurred more readily would
be on matters of detail and so what we try to do is
to engage the Advocate General’s Office at an early
stage so that there is an early warning of any problem
which she might have.
THE CHAIRMAN: Without sorting it out here?
MR BOYD: Yes.
THE CHAIRMAN: What about down there. Do you try and
sort it out down there before you proceed with the legislation?
MR BOYD: Well of course the Advocate General is a Member
of the United Kingdom Government and I know the Advocate
General will rely on the Attorney General. Having said
that, I think it is fair to say that the Attorney General
and I meet on a fairly regular basis, we sometimes have
five law officer meetings and we also involve in these
sometimes the Consul General for Wales and have on at
least one occasion opened it up thereafter to colleagues
in the Republic and also to prosecutors so that the
informal relationships between lawyers are kept up and
there is an ability to discuss things which we think
is important.
MR PRICE: Whereas you have referred to the Advocate
General, is this in fact the Solicitor General you are
referring to or some other office that I am not...?
MR BOYD: I apologise. Part of the devolution settlement
created a new post called the Advocate General for Scotland.
That was done because both the Scottish Law Officers
were being removed from the United Kingdom Government
and transferred to the Scottish Executive and in order
to fill the void as it were and to advise the United
Kingdom Government on the settlement and also Scottish
law matters which affected the whole of the United Kingdom,
the new post of Advocate General for Scotland was made
and Linda Clarke is the MP for Edinburgh Pentlands is
the first and only holder so far of that post.
SIR MICHAEL WHEELER BOOTH: She is in Parliament though,
isn’t she?
MR BOYD: Yes.
SIR MICHAEL WHEELER BOOTH: Your office has been effectively
taken out of Parliament hasn’t it? In the old days
the Lord Advocate used to be an MP and then there was,
I mean for a few years a Lord and now you are up here
and not a Member of the Scottish Parliament either.
I am wondering what the practical effect is, more time
to get on with pure law or how does it work?
MR BOYD: Well first of all the Scotland Act provides
that the Lord Advocate could be a Member of the Scottish
Parliament as well as the Solicitor General but if they
are not, if the law officers are not Members of the
Scottish Parliament, then there is provision that they
can sit in Parliament and speak but not vote. So tomorrow
in fact I have two pieces of work to do in the Parliament,
one is to participate in a debate on the Crown Office
and Procurator Fiscal Service and I will be replying
on that and then secondly to promote the Salmon and
Freshwater Fisheries Consultation Bill which I have
responsibility for, and from time to time I will answer
questions.
SIR MICHAEL WHEELER BOOTH: But you are not a Member
of the Club in the same way as your predecessors were.
You did imply you now rather rarely go...
MR BOYD: That is true but I only go when I need to
with a couple of exceptions, I have gone and sat there
and just listened to debates but mostly I don’t
go there very often. Having said that, I have the equivalent
of a PPS, a Ministerial Parliamentary Aide who keeps
me in touch. I now know most of the MSPs well and I
will see them either there or on other social occasions
and if they want to speak to me I think they know me
well enough now to get in touch.
THE CHAIRMAN: Well can I thank you very much need for
coming. I think it has been revealing. I am not sure
we got all seven veils off but maybe three or four.
Thank you very much indeed.
|
