Scottish Lord Advocate role needs reform. My bill will do it

The present Lord Advocate performs both roles and legal scholars and politicians are becoming increasingly concerned that this may give rise to a conflict of interest.

No criticism of the current or previous Lord Advocate or of the SNP government should be implied because the dual role of the Lord Advocate is a historical anachronism which predates devolution.

The dual role was rubber-stamped by the devolution settlement and to date no Tory or Labour government has attempted reform. I believe reform is long overdue and I was very pleased when the SNP manifesto for the 2021 Holyrood election promised to consult on separating the roles.

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The Scottish Government has committed to review the role of the Lord Advocate by the end of the current parliament, the initial phase of which is to be informed by expert research. I understand that a report will be published soon.

However, because of reservations under the Scotland Act 1998, it is not open to the Scottish Parliament to either create a new law officer or a new public prosecutor. That is why my bill is necessary.

The Lord Advocate is the senior of the two Scottish law officers. The other is the Solicitor General. The Lord Advocate is both a minister in the Scottish Government and the holder of a historic office which has a range of functions associated with the maintenance of the rule of law and the proper administration of justice.

She is head of the systems of criminal prosecution and investigation of deaths and principal legal adviser to the Scottish Government. She also represents the Scottish Government in civil proceedings and the public interest in a range of statutory and common law civil and constitutional functions.

The Scotland Act states that in relation to criminal prosecutions and investigation of deaths, the Lord Advocate must act independently of other ministers and, indeed, of any other person.

Alex Salmond (above) took steps to underline this independence by depoliticising the appointment process and providing that the law officers should not routinely attend cabinet meetings. The downside of this was that it deprived the Government of the benefit of advice from a lawyer who shares their political persuasion, which was always previously available.

The Lord Advocate is appointed by the King on the recommendation of the First Minister, with the agreement of the Scottish Parliament. Unlike other ministers, she cannot be removed from office by the First Minister without the approval of Parliament.

The Lord Advocate also has an important role in relation to ensuring that legislation passed by the Scottish Parliament is within the legislative competence of the Parliament and has powers under the Scotland Act in relation to the resolution of legal questions about the devolved powers of ministers and the Parliament. We saw this during the ill-fated trip to the UK Supreme Court to find out whether the Scottish Parliament had legislative competence to hold another independence referendum.

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Some, like myself, believed an argument could be made for a competent bill, others did not, the current Lord Advocate was not sure, and the rest is, as they say, history.

With the benefit of advice from a senior lawyer who supported the cause of independence, I think things might have turned out rather differently. At the very least, the tactics might have been more politically savvy.

Accountability to the Scottish Parliament is an important aspect of the Lord Advocate’s constitutional role. She may be but need not be an MSP. If not an MSP, she is entitled to participate in the proceedings of the Parliament but may not vote. She can therefore be questioned by MSPs about the exercise of her functions, although she is not required to answer questions or produce documents relating to the operation of the system of criminal prosecution about specific cases.

There is a tension between the principle that the Lord Advocate should be both independent in her capacity as chief prosecutor but also politically accountable as a law officer. The Venice Commission of the Council of Europe which advises member states on rule of law issues recommends they take steps to ensure that their state prosecution systems are seen to act independently of parliament and government.

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Elsewhere in the UK and in the Republic of Ireland, the two roles are held by different people to avoid any possible conflict of interest or the perception of such conflict. In England there is the Attorney General who is a member of the government of the day, and the Director of Public Prosecutions who is appointed by a public appointment process completely independent of government.

The Lord Chancellor is a third office which performs some constitutional functions. The experts currently advising the Scottish Government might also want to think about something akin to this third role for some of the Lord Advocate’s functions under the Scotland Act.

Concern about the potential conflicts in the role of the Lord Advocate have increased because of recent high-profile cases including the Scottish Government’s handling of complaints against Alex Salmond, the Rangers FC malicious prosecution scandal and the police investigation into SNP finances.

The report of the Scottish Parliament’s inquiry into the Scottish Government Handling of Harassment Complaints found that events showed a long-standing tension in the dual roles of the Lord Advocate, and it said that “public perception” was important.

I believe that it is important that the role of chief prosecutor be free from all suspicion of political interference.

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I also believe it is important that the Scottish Government has the benefit of a legal adviser who shares its political views while still giving independent advice. That, after all, is what the English, Welsh and Irish governments enjoy. Their law officers are usually parliamentarians from the same party as the government of the day.

The Scottish Government has accepted that there is a case for separating the roles. Both the current Secretary of State for Scotland, Alister Jack, and his shadow Ian Murray are in support. As are Scottish Labour leader Anas Sarwar and the Scottish Conservatives. My bill has support from the LibDems and Alba as well as SNP colleagues.

I hope that the existence of cross-party support means it has a chance of becoming law, leaving the final decision where it should be, with the Scottish Parliament.

Finally, I want to take issue with what Mhairi Black (below) said about some SNP MPs being too comfortable at Westminster. There is a difference between being comfortable and doing the job you were elected to do. It is not easy being an opposition MP for years on end, but with painstaking work and the building of cross-party consensus, good things can be achieved.

I showed this with the cross-party coalition I built to stop Boris Johnson’s unlawful prorogation of parliament in 2019. Other colleagues have worked hard on important campaigns which have delivered real change such as Ronnie Cowan on gambling reform, Patricia Gibson on paid bereavement leave, Carol Monaghan on the right of LGB army veterans to compensation and Marion Fellows on disability rights.

To do this, we must be present and performing our jobs at Westminster as well as spending time working in our constituencies. The SNP are not an abstentionist party. Those who want that policy to change need to do the work to build a campaign to get it debated and changed at conference.

Just as those of us who were worried about the governance of the party and the management of its finances under the previous leadership had to campaign and stand for election to the NEC to do something about it. We could have done with the support of those only now speaking out because, at the time, we were thwarted. However, I don’t think anyone could seriously argue that we have not been vindicated by subsequent events.

I hope that by being present at Westminster, doing the job I am elected and paid to do, I can get this piece of legislation through to the benefit of the good governance of Scotland and the nationalist cause. That’s how politics works.