Dr Lynda Clark: The short answer is that we do not have a Bill yet. My functions in relation to Scottish Parliament legislation do not kick in under section 33 of the Scotland Act 1998 until Bills are available. We are awaiting a United Kingdom Bill, and there is no Scottish Parliament legislation for me to examine.
Dr Lynda Clark: One of the reasons why I could not finish all the points that I wished to make in the interesting Adjournment debate that the hon. Member for Vale of York (Miss McIntosh) instigated was that I took too many interventions, including those from the hon. Member for Perth (Annabelle Ewing). I did reply to her question during the debate, but I do not think that she liked the answer. I must make...
Dr Lynda Clark: In the devolution settlement, all prosecutions—whether involving UK Departments or devolved matters—are devolved to the Lord Advocate. Prosecution policy is entirely a matter for him, and it is not for me to interfere with that.
Dr Lynda Clark: My hon. Friend sums up the matter well. Scots law has survived for many centuries through developing. The institutions, too, develop, and the proposal is one example of that.
Dr Lynda Clark: I congratulate the hon. Member for Vale of York (Miss McIntosh) on securing the debate, which I genuinely welcome. I hope that my explanation in greater detail of my role will give some satisfaction to the hon. Members present. As a fellow member of the Faculty of Advocates, the hon. Lady has always been interested in the new constitutional arrangements, and she has a long-standing interest...
Dr Lynda Clark: I shall discuss later the fact that I sometimes advise on purely English matters because there may be a cross-reference to Scotland. I am grateful for the interest shown in my office. Perhaps my role is difficult to understand because mine is different from other offices: the Office of the Advocate-General is an office with legal functions only; it is not a policy office. In answer to the...
Dr Lynda Clark: The work is different and the work load is different. I am involved in cases in court, which is not necessarily part of my colleagues' daily work load. It is important to recognise that, because my work is essentially legal work, it comes under the long-standing convention regarding the confidentiality of the content or existence of Law Officers' advice. That means, for example, that I am...
Dr Lynda Clark: What I am required to do is give the UK the best independent legal advice that I am able to give, and that is what I do. I shall take no more interventions; otherwise, I shall not be able to finish my speech. I make it clear when I answer parliamentary questions that I do not regard it as sensible or as one of my functions to respond in Parliament to hypothetical questions about complex legal...
Dr Lynda Clark: I consider all devolution issues that are intimated to me. Since 2 December 2003, there have been 32 devolution issues. Two of them arose in the civil area, while the rest concerned criminal matters such as pre-trial delay, failure to communicate information required by sea fishing measures, and the use of sexual history evidence in trials.
Dr Lynda Clark: Considerable representations have been made on the matter. In my personal experience, appearing both in the Privy Council and the House of Lords, legal principles and disputes do not necessarily fall into easily defined categories. They have a nasty habit of spreading across into other areas. Thus, a devolution issue before the Privy Council may raise more general principles that in other...
Dr Lynda Clark: The proposals are being considered along with other proposals. If there were any suggestion that there was any illegality in the proposed arrangements, that might be referred to me as a Law Officer but, on the general issues, there is no question, in my view, of their being unconstitutional, in the sense of illegal. They may be politically controversial, which is another matter altogether.
Dr Lynda Clark: Of course I defer entirely to Lord Hope, particularly when I am appearing in front of him, but in other areas of dispute, it depends how the proposals are brought forward. These matters are all still being considered.
Dr Lynda Clark: If there was a substantive case of that being illegal discrimination, no doubt someone might raise it as a devolution issue. In that case, I should be happy to consider it.
Dr Lynda Clark: I shall be delighted to see any test case that is brought and to consider it. I am sure that such a case would raise interesting issues. On the general question, the constitutional issue that the hon. Lady mentions seems to me a political controversy, not a legal one.
Dr Lynda Clark: Since 28 October 32 devolution issues have been intimated to me, all in the context of criminal matters. Although the majority concerned delay in court proceedings, others related to self-incrimination under the Road Traffic Act 1998, the offence of breach of the peace and the system for setting the punishment part of life sentences.
Dr Lynda Clark: I am sure that the hon. Lady recognises that we have two separate jurisdictions. The Lord Advocate is in charge of criminal prosecution in Scotland, and he is perfectly entitled to come to his own decision in relation to these matters.
Dr Lynda Clark: I refer my hon. Friend to the answer that I gave some moments ago to the hon. Member for Vale of York (Miss McIntosh).
Dr Lynda Clark: I have had some general discussions about legal issues, but generally the policy matters are not for me. The legal issues are still to be worked out, and my legal officials will be actively involved in taking forward the Bill. I know that my right hon. Friend the Secretary of State for Scotland has been actively involved in policy matters.
Dr Lynda Clark: I refer the hon. Gentleman to the answer that I gave some moments ago to the hon. Member for Vale of York (Miss McIntosh).
Dr Lynda Clark: That is an interesting hypothetical question, and I do not give answers to hypothetical questions.