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Held in check

18 June 07

Argument that seconding Executive legal advisers to the Scottish Parliament leads to potential conflict of interest, and that scrutiny of Executive bills lacks openness

by Iain Jamieson

Under the Scotland Act 1998, s 21(3), it is the duty of the Scottish Parliamentary Corporate Body (“SPCB”) to provide the Parliament, or ensure that it is provided, with the staff required for the Parliament’s purposes.

Under a transitional arrangement staff were seconded first from the Scottish Office and then from the Scottish Executive (SI 1999/1098, articles 2-5), to allow SPCB sufficient time to employ its own staff. This arrangement was due to end, at latest, on 1 April 2002.

All Parliament staff, except for legal staff, are now employed by SPCB on terms and conditions determined by SPCB. However, the 13 legal staff in the Directorate of Legal Services (“DLS”) continue to be seconded from the Scottish Executive on terms and conditions determined by the Executive.

GLSS and its arrangements

Last year, the then Presiding Officer, George Reid, explained to the Parliament in a series of written answers how and why this situation had come about (S2W-30289 to S2W-30292, 4 December 2006). The DLS is a member office in an organisation called the Government Legal Service for Scotland (GLSS), whose other main partners include the Office of the Solicitor to the Scottish Executive (OSSE) and the Office of the Solicitor to the Advocate General (OSAG). This provides access to common GLSS support services including training, library facilities, an intranet and arrangements for allocation and interchange of staff.

“The GLSS”, Mr Reid continued, “exists in order to raise awareness of the roles of lawyers in government, to promote contacts, share information and develop skills and knowledge among lawyers in its member offices, and to provide shared services to member offices and their legal staff.”

DLS staff are seconded under an agreement between SPCB and the Scottish Law Officers. “While seconded or loaned, legal staff are managed and professional supervision is exercised by the office in which they are posted and they owe their professional duties to that office. The arrangements ensure good use of public funds without jeopardising independence of view.”

It is understood that the GLSS is modelled upon the Government Legal Service (GLS), a similar type of arrangement between lawyers in various Whitehall departments. However, all GLS lawyers are batting for the same side, namely the UK Government. The main partners of the GLSS – OSSE, OSAG and the DLS – form part respectively of the Scottish Executive, the UK Government and the Parliament, organisations with totally conflicting interests which may result in judicial proceedings being taken between them. This gives rise to two particular problems, arising from the possibility of conflicts of interest and the fact that the legal staff of the Parliament are civil servants.

Conflict of interest

It is professional misconduct for “a solicitor [to] act for two or more parties whose interests conflict” (Solicitors (Scotland) Practice Rules 1986, article 3; Code of Conduct for Scottish Solicitors 2002). It is not, of course, alleged that any GLSS lawyer has been, or would ever be, guilty of professional misconduct in this sense. However, it is necessary to consider whether the arrangements may give rise to the appearance of a conflict of interest. In this connection, there are certain risks which may give an observer considerable unease as to the position of the DLS lawyer.

The partners in GLSS are not equal. The dominant partner is OSSE and it is the solicitor in charge of OSSE who heads GLSS and chairs the managing committee. Lawyers are recruited by the Executive to GLSS and then allocated to posts as the need arises. In other words, OSSE and the Executive are, and are perceived to be, the mothership from and to which lawyers are sent outside and returned. It is also to the mothership that GLSS lawyers look for career progression and promotion.

In these circumstances, it may be thought that there could be a risk –

  • that GLSS would be able to allocate to the Parliament a particular lawyer who may be sympathetic to the Executive’s viewpoint, or to require the return of a lawyer who may be a thorn in the Executive’s side;
  • that, when DLS lawyers are advising the Presiding Officer, the SPCB or a committee upon some matter, they are likely to be influenced, even subconsciously, by how the Executive is likely to approach that matter or what view it is likely to take; or even by the effect their advice might be perceived to have within the mothership, leading them to moderate their advice in order to avoid antagonising OSSE and the Executive.

In his written answer, George Reid made it clear that neither DLS nor OSSE staff have access to the other’s intranet, or to legal advice provided to the other’s clients. However, that is only part of the picture. If a lawyer has worked for some time within the Executive before being seconded to the Parliament, he or she is bound to have acquired a lot of confidential information, including the approach taken by the Executive and the Scottish Law Officers on key devolution or constitutional issues, such as interpretation of the Convention rights, or sensitive issues involving the Parliament such as the scope of the power under s 23 of the Scotland Act to cite witnesses or obtain evidence. There might, therefore, be a perceived risk that such knowledge might influence in some way advice given on similar issues within the Parliament.

So far as is known, none of these risks has ever materialised to cause an actual problem of conflict of interest, but this does not mean that they do not exist or are not perceived to exist. In addition, there do not appear to be any formal arrangements designed to prevent these risks from arising, such as the “Chinese walls” that have sometimes been approved by the courts in a commercial context (e.g. Gus Consulting GmbH v Leboeuf Lamb Greene & Macrae [2006] EWCA Civ 683). Indeed, GLSS makes a virtue of the fact that information and training is shared and this may involve or encourage the disclosure of confidential information or the convergence of viewpoints.

Parliament staff as civil servants

An additional problem arises from the fact that legal staff seconded from the Executive to the Parliament are civil servants.

Civil servants are servants of the Crown employed for the purposes of assisting in the provision of executive government. However, the Parliament is primarily a legislative body which holds the Executive to account. That is why staff employed by SPCB are not civil servants.

Civil servants owe a duty of loyalty to the Executive and are bound to “act in a way which deserves and retains the confidence of Ministers” (Civil Service Code, para 13). These duties are stated to be part of the contractual relationship between the civil servant and the employer. The secondment of a lawyer to work in the Parliament is on the same terms and conditions as apply to that lawyer when engaged in work within the Executive.

In these circumstances, it is thought that it is simply not appropriate for Parliament legal staff to be civil servants, beyond the statutory transitional arrangements referred to above. It would appear to suggest that they may be subject to divided loyalties. For parliamentary legal staff to belong to the “Government Legal Service for Scotland” simply underlines this incongruity.

Legislative competence of bills

This unease about the ambiguous position of the Parliament’s legal staff is increased in relation to their advice to the Presiding Officer as to whether an Executive bill is within the Parliament’s legislative competence.

Section 31(2) and (3) of the Scotland Act requires the Presiding Officer, on or before the introduction of a bill, to certify whether, in his or her view, its provisions would be within legislative competence. This was intended to provide an independent check by the Parliament on its competence.

However, in the case of an Executive bill, the Executive sends, on a confidential basis, to certain officials of the Parliament, including the DLS, not only a copy of the draft bill but also a note of the Executive’s view on its legislative competence, three weeks before the bill’s planned introduction.

The procedures were devised at the beginning of devolution, when parliamentary staff were few in number and inexperienced in dealing with devolution issues, but have since become the norm for Executive bills. The Executive seems prepared to waive its right of legal confidentiality in order to assist DLS to provide advice within the three weeks and avoid holding up the Executive’s legislative programme.

DLS would no doubt take the view that being given this note does not predispose them to agree with it. However, the approach taken by the Executive, as revealed in the note, is bound to influence DLS even if they may disagree with some of the conclusions. In addition, it reinforces the underlying attitude of DLS staff seconded from the Executive, who may have been indoctrinated by the Executive’s way of approaching these questions. It is noticeable that the Presiding Officer has never given a view that a provision in an Executive bill is outwith competence.

Behind the scenes

It is understood that, in practice, DLS sometimes have considerable discussion with OSSE about the views expressed in that note and may ask for OSSE’s views on matters not contained in it. This suggests a role not of providing an independent check but of requiring the Executive to satisfy DLS that the bill is within legislative competence. This may result in a bill being modified before introduction in order to accommodate DLS’s views.

This might be less objectionable if done openly and above board. However, it is not. It is redolent of the secrecy of the civil service at its worst. Although information about the process is available on the Parliament’s website in the Guidance on Public Bills, that Guidance is prepared by Parliament staff and the procedures have not, so far as is known, ever been sanctioned by SPCB or the Parliament. The Executive’s note is shown only to certain officials, including the DLS, on a confidential basis and is not available to MSPs or put on the parliamentary website. Equally, discussions between DLS and OSSE are neither sanctioned nor known about by the SPCB and MSPs, even though they may result in the bill being modified before introduction. The DLS seem to be acting on their own, unaccountable to anyone.

This lack of transparency is increased by the fact that Standing Orders (rule 9.3.1) only require the Presiding Officer to give reasons when he is of the view that a bill’s provisions are not within legislative competence. MSPs, Parliament and public are not aware of the reasons why the Presiding Officer may have been advised that an Executive bill is within competence, and cannot compare those reasons with the Executive’s note.

An instructive example

Worse, the DLS refuse to take into account the views of anyone other than the Executive on the legislative competence of an Executive bill. This was demonstrated recently with the Legal Profession and Legal Aid (Scotland) Bill. The Executive consulted the Law Society of Scotland on drafts of that bill before it was introduced. The Society took the view that various provisions were incompatible with the European Convention on Human Rights and therefore outwith competence. It so advised the Executive and sought to provide DLS with a copy of its views prior to DLS advising the Presiding Officer.

The Society was informed that DLS would not take its views into account. The Presiding Officer, on DLS advice, then certified that the bill was within legislative competence. During its passage, the Society obtained the opinions of Lord Lester of Herne Hill QC that certain provisions were outwith legislative competence.

Those opinions were shared with the Executive and MSPs. Eventually, the bill was amended in order to remedy, at least to some extent, the points made by the Society prior to its introduction. All this trouble and expense might have been avoided if DLS had been prepared to consider the Society’s views, or even to be seen to approach the matter with an open mind.

In these circumstances, although the secrecy makes it difficult to tell whether, or to what extent, DLS may be influenced in their views by the views of the Executive, the procedures operated by DLS give the impression of being one-sided, partial, unfair and skewed in favour of the Executive. Certainly what is being practised is hardly in accordance with the Parliament’s founding principles of openness and transparency. It does not appear to provide the independent check on the legislative competence of bills introduced into the Parliament, intended by the Scotland Act. This impression has to change if confidence in the procedures and independence of the Parliament is to be maintained.

Suggested solutions

It is suggested that the above problems can be avoided by taking three simple steps:

  • SPCB should employ its own legal staff by open competition. There should be no bar on GLSS lawyers applying but, if they are accepted, they should cease to be civil servants and should not be seconded from the Executive. The DLS should cease to be part of GLSS. If SPCB wishes its legal staff to have access to the GLSS common training and library facilities, this should be a separate contractual arrangement.
  • The Executive should cease to send its note on the legislative competence of bills on a confidential basis to DLS. The DLS should consider the matter entirely uninfluenced by the view taken by the Executive or anyone else. Given the considerable increase in numbers in DLS staff since devolution, and the possibility of contracting out work to specialist firms or advocates, it is thought that this should still normally be capable of being done within the three week pre-introduction period, but this may depend on the size of the bill and the number of bills which DLS is considering at any one time.
  • Standing Orders should be amended to require the Presiding Officer to give reasons in all cases and not just when he considers that the provisions of a bill are not within legislative competence. This will open the whole process to objective scrutiny by other lawyers and should, therefore, help to restore the confidence of MSPs and the public in the Parliament’s independent role as a check on the Executive, as the Scotland Act intended.

    Iain Jamieson is a former government lawyer