Mr. Maxton: To ask the Prime Minister if he will make a statement regarding the giving of advice by the First Minister to Her
Majesty on the exercise of her functions in connection with the implementation of the Scotland Act 1998. [89358]
The Prime Minister: In a number of situations advice is by convention, given by a Minister of the Crown to Her Majesty in respect of
the exercise of her functions. The majority of Her Majesty's functions in respect of which she receives advice from a Minister of
the Crown in this way relate to the making of appointments and the use of the Royal prerogative.
As a consequence of the new constitutional arrangements under the Scotland Act 1998, it is proposed that in some of those situations
the First Minister instead of a Minister of the Crown will give advice, by convention, to Her Majesty after 1 July in respect of her
functions. No formal order is required to give effect to these transfers, which will be carried out by administrative arrangement.
In this context "Her Majesty's functions" refer to her statutory functions and cases where Her Majesty acts under her prerogative or
common law powers. It concerns only those functions of Her Majesty which she exercises personally and not those which are exercised
on her behalf by a Minister of the Crown. It deals only with circumstances in which a Minister of the Crown provides advice to Her
Majesty by convention and it does not deal with circumstances in which a Minister of the Crown exercises a statutory function of
advising Her Majesty. Where appropriate, provision has been made in the Scotland Act, or in subordinate legislation under the
Scotland Act, to transfer these statutory advice-giving functions from the Minister of the Crown to the First Minister.
In cases where Her Majesty exercises a function which is exercisable within devolved competence for the purposes of the Scotland Act
1998 and she is, by convention, advised by a Minister of the Crown about the exercise of that function, then after 1 July she will
be advised by the First Minister instead of by a Minister of the Crown.
For example, Her Majesty exercises the Royal prerogative of mercy and appoints regius professors of the ancient Scottish
universities in this way. A list of further examples of circumstances in which Her Majesty will in future be advised by the First
Minister instead of by the Secretary of State in relation to the exercise of her functions which relate in whole or in part to a
devolved matter has been placed in the Library.
There are some matters in respect of which the Prime Minister gives advice to Her Majesty on the exercise of her functions and on
which it would be appropriate for the Prime Minister to consult or to take advice from the First Minister. These matters include
recommendations of Scottish candidates for honours and dignities, which are a reserved matter, and advice on the appointment of
Lords Lieutenants in Scotland, the Lord High Commissioner to the General Assembly of the Church of Scotland and members of the Royal
Commission on Environmental Pollution and the Forestry Commission. There are also matters where a Minister of the Crown gives advice
to Her Majesty and where it also would be appropriate for the First Minister to be consulted by or to give advice to that Minister
of the Crown.
The Scotland Act 1998 confers upon the First Minister various functions of advising Her Majesty either directly or through the Prime
Minister. This includes seeking Her Majesty's approval to the appointment of Scottish Ministers and recommending to Her Majesty
persons for appointment as Scottish Law Officers. Section 95 of the Act sets out in detail the arrangements for the First Minister
to nominate persons for appointment as Lord President of the Court of Session and Lord Justice Clerk to the Prime Minister, who in
turn makes recommendations on those appointments to Her Majesty. It also provides for the First Minister to recommend to Her Majesty
the appointment of other judges.
In a number of other situations, Her Majesty is advised in relation to the exercise of her functions by the Privy Council rather
than by a Minister of the Crown. The Privy Council deals with various items of Scottish business, both prerogative business and
statutory matters, such as the grant of Royal Charters and Privy Council appointments. I have placed a paper in the Libraries of
both Houses that briefly describes the circumstances in which the First Minister will, from 1 July, contribute to Privy Council
business in the same manner as the Secretary of State for Scotland has done.