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14 February 2000

Where does Clark’s clout lie?

New Statesman Scotland - The new job of Advocate General has caused a stir among Scottish l

By George Rosie

There is a question being muttered by Scots lawyers and it is this: what is Lynda Clark for? Or, to be more precise, what is Lynda Clark’s position as the Advocate General for? To a trade that has grown accustomed to complaining about (while deferring to) centuries-old figures such as the Lord Advocate, the Lord Justice Clerk and the Lord President, the arrival on the legal scene of a brand new, European-sounding figure known as the Advocate General has caused some fluttering in the coop. The fact that the Advocate General is a woman, and a rather self-effacing one at that, adds to the confusion. What, the lawyers are asking, is Clark supposed to be doing? And where does she fit into the legal apparatus of the new Scotland?

They are fair questions. They go to the heart of the devolution settlement. As one of the “troika” of senior politicians that runs the Scotland Office (the other two being the Secretary of State, John Reid, and the Minister of State, Brian Wilson), Clark flits between the Scotland Office’s premises at Dover House in London and St Andrew’s House in Edinburgh – which begs even more questions. Is she Scotland’s legal representative in London? Or is she London’s top legal gun in Scotland? Is she there to ensure that any UK legislation is “fit” for Scots law? Or is she in place to make sure that London’s legal writ runs north of the border? And anyway, who is Lynda Clark? Part of the problem with Lynda Clark QC, MP, is that her profile is so low.

Her face rarely appears in the Scottish press, let alone in the Fleet Street variety. Unlike, say, Wendy Alexander MSP, whose bustling about the land seems to be snapped on an hourly basis, Clark prefers the background. In the 70 or so press handouts posted on the Internet by the Scotland Office since the beginning of November, she features only twice. Once was when she lectured law students at Dundee University; the other when she told a convocation of Scottish businessmen that they should be doing more business with Brazil. The Scotland Office limelight is hogged by the double act of Reid and Wilson.

But for all her diffidence, Clark has come a long way. Her progress testifies to her reputation as a determined woman. A bright working-class girl from the Menzies Hill council estate in Dundee, she studied law at the University of St Andrews, did a PhD at Edinburgh and lectured for a few years at Dundee University. She became an advocate in 1977 and a QC in 1989, the third Scotswoman to achieve that eminence. She was then called to the English Bar in 1990 as a member of the Inner Temple. That was followed by a course in European law in Florence and a spell studying medical law and class actions at Harvard.

With this set of academic credentials under her belt, Clark’s climb up the Scots legal establishment was steady. In the 1990s, she was chairman of the Faculty of Advocates education committee, sat on the committees that supervised legal education, became a member of the Scottish Legal Aid Board and was “standing junior counsel” in Scotland for the Department of Energy. As an advocate, she became something of an ace in reparation cases. She is also a member of the Court of Edinburgh University (a body that was presided over by Gordon Brown in his days as Edinburgh’s second student rector).

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Clark is married to the well-known arts journalist and enthusiastic cineaste, Richard Mowe. They have no children. Clark and Mowe live in some style in Regent Terrace, Edinburgh, an elegant parade of neoclassical town houses (backed by some of the most handsome private gardens in the city) which overlooks the site of the Holyrood parliament and the Palace of Holyrood House. Her entry in Who’s Who in Scotland is sparse. No interests or hobbies are mentioned, but the Scotland Office’s PR machine claims that her “leisure interests” include “swimming, reading and the arts”.

Although usually seen as an able, assiduous and ambitious lawyer, her success as a politician seems to have taken her colleagues by surprise. “She just did not seem the political type,” said one fellow advocate. “I just cannot see her enjoying all the doorstepping, glad-handing and baby-kissing that goes with electioneering.”

Whether or not she enjoys it, she manages to do it. Clark ran (unsuccessfully) as a Labour Party candidate in North East Fife in 1992 and then, in the anti-Tory fervour of 1997, she toppled no less a figure than Malcolm Rifkind in the Pentlands constituency of Edinburgh. In her own way, Clark has been something of a ground-breaker. With her victory over Rifkind, she became Edinburgh’s first female MP (which may say more about the nature of politics in the Scottish capital than it does about Clark). When she was appointed to the brand new job of Advocate General in May 1999, she became the first woman to become a senior government law officer.

As such, she sits on a whole clutch of powerful committees: the legislation committee; the Queen’s speech and future legislation committee; the devolution policy committee; and the subcommittees on freedom of information and the incorporation of the European Convention on Human Rights. All of these are powerful cabinet committees. Their members have a big hand in shaping Britain.

It may be that Clark is the most influential (even powerful) Scotswoman of modern times. But Clark’s clout lies not so much in her membership of the various cabinet committees but with the muscle handed to her by the Scotland Act of 1998. The Scotland Act is, to all intents and purposes, Scotland’s constitution. According to Section 33, before one of the Scottish Parliament’s bills can be sent on to the Queen for royal assent it has to be run past the Advocate General. If she feels that the bill strays into one of the constitutional “no-go” areas (the list of which is very long indeed), then she can stop it in its tracks and send its backers home to think again.

As the Scotland Office reminded us last November, the Scotland Act of 1998 makes the European Convention on Human Rights (ECHR) loom larger in Scotland than it does in England and Wales. Already the ECHR has made a powerful mark on Scots law. It was behind the abolition of Scotland’s temporary sheriffs and last week’s ruling by the Scottish bench that videotape of traffic offences is not admissible as evidence. And it is the Advocate General’s job to make sure that Holyrood legislation comes up to ECHR scratch. The Scotland Act gives Clark the power to “intervene” in the progress of an act and block its passage.

Section 35 of the Scotland Act is even more ominous. This is the section that gives the Scotland Office the power to keep the uppity Jocks of Holyrood in line (if, that is, they ever get round to being uppity). Section 35 is quite plain. If the Secretary of State feels that any measure being passed by Holyrood is “incompatible with any international obligations or the interests of defence or national security” or that it might tread on those matters “reserved” by Westminster then he may “make an order prohibiting the Presiding Officer from submitting the bill for royal assent.”

As Reid’s senior legal adviser, Clark will have a big say in what should and should not be ruled out by the Secretary of State. Advocate General Clark has already gone to bat for the government – in the House of Lords. At the end of October last year, the Tories decided to try to stop Blair and company from stripping the Lords of its hereditaries by pleading that such a measure was against the spirit and letter of the Treaty of Union of 1707. Clark donned her court robe and sallied out to trounce the Tory wheeze. It was an easy victory. The Tory ploy was never a good one. The British courts have long since decided that the Treaty of Union can be violated whenever the government chooses.

So far, Clark has not been seriously tested. That will come as, when and if Holyrood runs with a measure that looks like treading on Westminster’s toes. If that happens, Clark will have to jump in brandishing Section 33 of the Scotland Act to defy the will of Scotland’s elected parliament. If such an intervention goes to court, she will be locking horns with whoever is Lord Advocate of the day. And in the process it is likely that she’ll be seen as London’s creature and incur the kind of odium that might cripple her political future.

“The words poison and chalice come to mind,” said one lawyer, reflecting on the role of the Advocate General. But it may never come to that, at least not for Clark. She may not survive the next general election. Her coat (or court gown) may well be on a shoogly nail. Her majority of 4,862 is decent enough, but Edinburgh Pentlands is not the safest Labour seat in Scotland. The Tories have reselected the old hand and previous incumbent Rifkind to stand against Clark in 2001 or 2002. Rifkind is a wily campaigner. He is popular with south Edinburgh’s middle classes. He will be a formidable opponent.

When the time comes, Clark will have a fight on her hands. Whether she is up to it remains to be seen.