Scotland Act 1998: Role of the Lord Advocate

It was the former Lord Advocate’s decision, and seeking to cast blame on his predecessor was shameful and inadequate. An inquiry, perhaps even by a non-Scottish judicial figure, has been promised. Additionally, there is the financial cost. The quantum of damages is for the court, but suggestions are that the final bill could reach £60 million or £80 million—this in an organisation with an annual budget of £300 million, struggling to meet existing commitments. The price will be paid by Scottish taxpayers and the loss felt by hard-pressed Scottish public services.

Secondly, and just as alarming, has been the role of the Lord Advocate and a coterie around him within the Crown Office in the Alex Salmond case, and the fallout from it. It is another instance of the public having to pay the price of Government incompetence, with the legal expenses bill in the civil case amounting to £500,000, but where the issue of impartiality as well as competence was raised. In the civil case, the presiding judge described the Scottish Government’s actions as “unlawful”, “unfair” and “tainted by apparent bias”. During proceedings, senior external counsel, Roddy Dunlop QC, dean of the Faculty of Advocates, expressed horror at the situation he and his colleague had been put in by their client. They could no longer rest on pleadings they knew to be untrue. The client was the Government, and their senior legal adviser was the Lord Advocate. A criminal case followed the failed civil case and was prosecuted by the Crown Office, where the same Lord Advocate remained in office.

Despite growing pressures on police and prosecution, nothing has been spared—nothing has been too trivial—but the targets always seem selective. The Alex Salmond case saw resources deployed that are normally reserved for serious organised crime figures or serial killers, for charges that, were it not for who was being prosecuted, would either never have seen the light of day or appeared only in the lowest courts, not the High Court. I say that as someone who was Justice Secretary for seven and a half years but also a defence agent for 20 years. As it was, Mr Salmond was acquitted on all charges, by a majority female jury.

It is standard practice in cases involving politicians that the Lord Advocate recuses himself from involvement in the consideration or prosecution of the case, and that was done here, with no direct involvement in the prosecution. However, at the same time, the Lord Advocate had been, and was, sitting on Scottish Government committees dealing with the civil case, where referral or prosecution was being actively sought and advised by the Administration.

Let us recall that a prosecution was sought by the Scottish Government, as the actions of the director of human resources in contacting the police confirm. Many—indeed, most—complainers were and remain at the heart of Government, or are officials or otherwise closely linked with the governing party. Prosecution was encouraged and pressed for by the chief executive of the governing party, who is the First Minister’s husband.

Chinese walls and recusal are entirely inadequate. In one role, the Lord Advocate was supporting a Government pursuing prosecution; in another, he was denying that it was anything to do with him. A separation of powers this certainly was not. When James Wolffe appeared before the Holyrood Committee considering the Salmond prosecution, he was frankly evasive and obfuscating, mirroring the actions of the Crown and the Government in a lack of openness and transparency. There was neither contrition nor candour. Open government this certainly was not.

The fallout and failures continue to reverberate. Following on from the Alex Salmond case has been that of Craig Murray, a writer and former diplomat. His conviction is under appeal at the Supreme Court; accordingly, I refrain from commenting on specifics of the case. Instead, I restrict my remarks to the decision by the Crown to prosecute Mr Murray for jigsaw identification of complainers in the case. Why was he prosecuted when others who did so—in one case certainly overtly, and in many others much more flagrantly than by Mr Murray—were not? No action was taken against them.

Moreover, publications that in any other case would have constituted a clear contempt of court went without censure by the Crown. They included newspaper articles as prejudicial as I have ever seen, but they were supporting prosecution, whereas Mr Murray, though seeking to report factually, was not. It seems that the Crown has one law for those supporting the Government line and another for those who challenge it.

Protocols have failed, been breached or even abused. Interim steps can be taken to separate the roles. Perhaps there should not just be a recusal, as there no doubt will be by the Lord Advocate, but, as with the Rangers FC investigation, the bringing in of an external judicial adviser. Moreover, the Lord Advocate has recused herself from involvement in the Rangers FC civil proceedings. Maybe she could recuse herself from all direct Government involvement. An in-house legal department exists. The duty to represent the Government in court and pursue constitutional challenges remains, but that can be dealt with by external counsel.

Change and a separation of powers there must be. The twin roles of the Lord Advocate in prosecution and in advising Government are an historical anachronism, and are entirely unsuited to a modern democracy. As a former Justice Secretary, as well as someone who has practised law in Scotland for over 20 years and cherishes our distinct system, I am appalled at what has happened, and I know that is echoed in legal circles.

The Lord Advocate’s role as head of the systems of criminal prosecution and investigation of deaths is, in section 29 of the 1998 Act, protected from modification by an Act of the Scottish Parliament. The hon. Member for East Lothian has mentioned the limitation on legislative competence in section 29, and any formal separation of responsibilities would require legislation. Although the UK Government have the power to bring forward legislation to make this change, in practice we would want to ensure the Scottish Government have first put their proposals to the Scottish Parliament for scrutiny.