Lord Advocate

I beg to move,

That leave be given to bring in a Bill to make provision about the role and functions of the Lord Advocate; and for connected purposes.

Chaos and decay are priced into the lives of people in Scotland as they suffer under the yoke of the Scottish National party Administration at Holyrood. However, the latest crisis there strikes at the integrity of Scots law, and so demands action this day—and not mere indifference.

The Lord Advocate is the most senior law officer in Scotland, in ultimate charge of all criminal proceedings, sitting at the pinnacle of the Crown Office and Procurator Fiscal Service. That same Lord Advocate also sits in Cabinet as a pivotal adviser to the Scottish Executive, who style themselves the Scottish Government. Just saying it out loud is alarming: the head of criminal prosecutions sits cheek-by-jowl with the politicians who are supposed to run Scotland—she sits at the Cabinet table with the very people who appointed her. Although it is a situation created by the advent of devolution, this cannot be right, for there ought not to be even the merest suggestion of a conflict of interests. It is not the stuff of a 21st-century democracy, let alone the country of the enlightenment.

“Ah,” say apologists, “the Lord Advocate simply recuses herself in certain cases and is merely the titular head of some prosecutions.” This is meant to be high-minded—an elegant solution concocted by the legal hierarchy in the salons of Edinburgh—but it is cloyingly cosy and has for years been the subject of disquiet. Now this comfortable nostrum has been shattered by recent revelations made possible only by a vigorous free press. Newspapers broke the news that the present Lord Advocate, Dorothy Bain KC, provided briefings to First Minister John Swinney about a court case involving Peter Murrell, former chief executive of the SNP and, further, the estranged husband of ex-First Minister Nicola Sturgeon. It was reported that the details and timelines for the case, none of which was public knowledge, were presented to Mr Swinney. The court case will reportedly not now come to trial before next year, conveniently after Holyrood’s elections this May.

Of course, given that proceedings are active, I must be extremely circumspect about that case. Regardless, we in this place must concern ourselves with the dual role of the Lord Advocate: the twin hats of prosecutor and Government adviser on one learned head. The dual role is enshrined in the Scotland Act 1998, and so this Bill is designed to allow for the separation of roles such that the head of Scotland’s prosecution service is, in future, entirely separate from that of Government adviser. That situation is best practice in modern democracies and pertains here in England where the head of the Crown Prosecution Service sits entirely apart from the Cabinet and Government.

We often discuss contentious matters in this House, but this is an issue on which there is surprising unanimity. Almost exactly a year ago, the Prime Minister agreed with me when I raised the Lord Advocate’s two jobs that it was an important matter and indicated that Scottish Labour supported splitting the roles. At the Conservative and Unionist conference in Edinburgh last month, the Leader of His Majesty’s loyal Opposition joined Scottish party leader Russell Findlay in calling for robust action in this House. Even the SNP committed in its manifesto to looking at the dual role disaster. Yet under the divisive hand of John Swinney, Scotland is a land where the inevitable never happens and the improbable always does.

Mr Swinney has belatedly published a report into the mechanics of separating the Lord Advocate from the Cabinet so that Scotland can have a conspicuously independent prosecutor and the Scottish Administration can still have sound legal advice. Yet there is no indication of any move actually to separate the roles and, indeed, the Scottish Executive yesterday put out a statement lauding the “strengths” of the current arrangement. The public are entitled to question those supposed strengths and whether they are trumped by the perception of a conflict of interest when the role of legal adviser to the Scottish Government is concentrated in one person who is also chief prosecutor.

Politicians legislate; lawyers enact the laws. When prosecutors are, or are even perceived to be, too close to politicians, like moths drawn too close to the flame of power, the public may rightly fear that the law is compromised, and so we must act. Some will claim that this is overweening Westminster bullying pawky Holyrood—not so. Holyrood itself could drain this quagmire now by seeking a section 30 order to vary the Scotland Act, clearing the way for separation of the Law Officers’ roles. That would be internal to the Edinburgh Parliament—a move to restore public faith in the law by its own elected Members. Albeit belated and tardy, such a move would, I contend, be welcomed as an attempt to lift the cloud that hangs over Scots law. Will Mr Swinney at this eleventh hour—and against the run of play, for he has been at the heart of every wrong-headed decision by the SNP for almost two decades—do the correct thing? That is unlikely, and so on behalf of the right-thinking public in Scotland, I commend this Bill to the House.

That John Cooper, John Lamont, David Mundell, Harriet Cross, Andrew Bowie, David Davis, Jamie Stone, Christine Jardine, Sir Iain Duncan Smith, Elaine Stewart, Torcuil Crichton and John Grady present the Bill.

John Cooper accordingly presented the Bill.