Scottish Law Officers (Devolution)

The Scotland Act states that, in relation to criminal prosecutions and the investigation of deaths, the Lord Advocate must act independently of other Ministers and, indeed, any other person, and I believe that the Lord Advocates have acted independently. The former First Minister, the right hon. Alex Salmond, took steps to underline that independence by depoliticising the appointment process and providing that the Law Officers should not routinely attend Cabinet meetings. There was a downside to this: it deprived the Scottish Government of the benefit of advice from a lawyer who shares their political persuasion. Such advice was previously available to other Governments and is something from which the UK Government benefit.

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 the Parliament. The Lord Advocate has an important role in ensuring that legislation passed by the Scottish Parliament is within its legislative competence, and she 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 that in action recently during the referral to the United Kingdom Supreme Court on the question of whether the Scottish Parliament had the power to hold a second independence referendum.

Accountability to the Scottish Parliament is an important aspect of the Lord Advocate’s constitutional role. She may, but need not, be a Member of the Scottish Parliament and, 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 in relation to the operation of the criminal prosecution system in specific cases.

There is a tension in 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 that member states take steps to ensure that their state prosecution systems are seen to act independently of Parliament and Government. For the record, I think the Scottish state prosecution system operates independently of Parliament and Government, but because the two roles are held by the one person, there is always the perception that that might not be the case.

Elsewhere in the UK and in the Republic of Ireland, the two roles are held by different people, which avoids any possible conflict of interest or the perception of one. In England, there is an Attorney General, who is a member of the Government of the day, and, quite separately, a Director of Public Prosecutions, who is appointed by a public appointment process completely independent of Government. Of course, there is the third office of the Lord Chancellor, who performs some constitutional functions. The experts advising the Scottish Government might want to think about something akin to that third role for some of the Lord Advocate’s functions under the Scotland Act.

Concern about potential conflicts in the role of the Lord Advocate has increased in recent times because of some high-profile cases, including the Scottish Government’s handling of complaints against Alex Salmond, the malicious scandal in relation to prosecutions over the takeover of Rangers football club, and the police investigation into SNP finances. It is important to understand that similar concerns have been raised in the past. In the early days of the devolved Scottish Parliament when Labour was the Government, in the wake of the resignation of a Labour-appointed Lord Advocate, there was a big debate about the potential conflict of interest prompted by concerns around the Lockerbie prosecution, the growing importance of the European convention on human rights under devolution, and the Lord Advocate’s then role in some judicial appointments. There was considerable disquiet back in 2000 that the Lord Advocate was performing the role of politician, prosecutor and judge-maker.

Since 2002, the appointment of judges in Scotland has been the responsibility of an independent panel. The Lord Advocate has no involvement in that, so her role does not really pose—as some people sometimes say—a problem for the constitutional principle of the separation of powers. This is not an issue of the separation of powers between Executive, legislature and judiciary, because the Lord Advocate does not have anything to do with the judiciary.

To come back to present times, the report of the Scottish Parliament’s inquiry into the Scottish Government’s handling of harassment complaints found that events around those issues had shown a

“long-standing tension in the Lord Advocate’s dual roles,”

and said that “public perceptions” were important. It is important that the role of chief prosecutor in any state be free from all suspicion of political interference. I stress that I am not saying that there has been political interference; I want to protect the role from the suspicion that there might be.

It is also important that Scottish Governments of whatever political hue have the benefit of a legal adviser who shares their political views while still giving independent advice. That, after all, is what the UK Government, Welsh Government and Irish Governments enjoy. Their Law Officers are usually parliamentarians from the same party as the Government of the day.

As I said, the Scottish Government have accepted that there is a case for separating the two roles of the Lord Advocate. I am delighted that both the Secretary of State for Scotland, who is in his place, and his shadow, the hon. Member for Edinburgh South (Ian Murray), who explained to me why he could not be in his place for this Bill, agree that there is a case for separating the two roles. My Bill has support from the Liberal Democrats, the Alba party and a distinguished Conservative Back Bencher, as well as SNP colleagues. I hope that the existence of cross-party support means that this private Member’s Bill has a chance of becoming law, leaving the final decision on the role of Scotland’s Law Officers where it should be: with the Scottish Parliament.

That Joanna Cherry, Chris Stephens, Douglas Chapman, Patricia Gibson, Carol Monaghan, Marion Fellows, Ronnie Cowan, Kenny MacAskill, Mr Alistair Carmichael, Wendy Chamberlain, Christine Jardine and Sir David Davis present the Bill.

Joanna Cherry accordingly presented the Bill.

Finance Bill (Programme) (No. 2)

That the Order of 13 December 2023 (Finance Bill: Programme) be varied as follows:

In paragraph (5) of that Order, for “Thursday 18 January” substitute “Tuesday 30 January”.—(Robert Largan.)