Integrity of the Scottish legal system demands Lord Advocate's dual role must end
The Lord Advocate’s roles as the head of prosecutions and the Scottish Government’s legal adviser should be split to strengthen public trust in the legal system
The furore surrounding the Lord Advocate, Dorothy Bain KC, and her involvement in the Peter Murrell case shows no sign of abating, after it was revealed last week that she had informed the First Minister John Swinney back in January of the details of the charges against the former SNP chief executive.
Swinney passed this information onto his political advisor and his civil servants, but it would be another month before those details were made available to the public or, indeed, to opposition politicians.
In a shaky performance in the Holyrood Chamber on Thursday, Bain stated there was nothing unusual in her action, as details of other high-profile cases had been drawn to a First Minister’s attention before details were made public. This does, however, rather miss the point that the case against Peter Murrell is not one in which the First Minister is a disinterested observer.
Bain’s political naivety
Swinney, as leader of the SNP, has an intense and very personal interest in that case, and it is undeniable that in providing that information to him and his political advisors before giving it to other politicians, Bain was gifting him political advantage.
It is now being claimed the Lord Advocate’s actions may amount to a breach of the Ministerial Code, in relation to the contents of her statement to parliament. She told Holyrood that there was no limit on the terms of the indictment against Murrell being made public from the point at which it was served, a statement which clearly contradicts what the Crown Office was telling journalists, that details of the charges could not be published until a preliminary court hearing.
I do not believe that the Lord Advocate is personally corrupt, and no one has made that accusation. But both Russell Findlay and Kemi Badenoch are entirely right to say that there is something stinky about this whole business.
READ MORE: Lord Advocate's note to John Swinney about Murrell case speaks volumes about how SNP runs Scotland
It was, at best, unwise for the Lord Advocate to give the First Minister details of a case in which he clearly had a significant interest prior to these being made public. At the very least, it suggests a high level of political naivety in someone who sits in the Scottish Government’s Cabinet.
This whole murky affair has brought back to life the long-running debate around the dual role of the Lord Advocate in Scottish public life: both as head of the Crown Office and Prosecution Service, and as a member of the Cabinet and the government’s principal legal advisor.
In the former role, the Lord Advocate is required to act entirely independently of politics, even in cases involving individuals such as Alex Salmond and Peter Murrell who are significant political figures.
In the latter role, the holder of the office is not merely privy to significant political discussions in government, but also acts as the Cabinet’s legal advisor and has to present court cases representing government policy. We have had Dorothy Bain making herself look ridiculous arguing in the Supreme Court that the Scottish Parliament should have the right to unilaterally hold another independence referendum without Westminster consent, in clear defiance of the constitutional settlement.
‘Long-standing tension’
Moreover, other cases where the Scottish Government is defending – such as against the campaign group For Women Scotland, with the Lord Advocate’s representatives having to argue that biological men can become women simply by saying so, or that men should be in women’s prisons – means that the holder of the office is unavoidably and irretrievably dragged into the world of party politics.
Concerns about the Lord Advocate’s dual role are not new. When I sat on the parliamentary committee investigating the Scottish Government’s handling of harassment complaints against Alex Salmond, we concluded there was “a long-standing tension” here, and asked the government to investigate the matter. The SNP’s manifesto in 2021 contained a commitment to do just that, but five years later nothing has changed.
My MSP colleague, Liam Kerr, Scottish Conservative Justice spokesman, has been pursuing the issue with parliamentary questions. According to a response he received on February 13 from Justice Secretary Angela Constance, the matter is “currently under active ministerial consideration”. This does not suggest, however, that the SNP see any urgency in addressing the issue.
Kerr has written in the past about the need for the Lord Advocate’s role to be split, to have an independent head of the Prosecution Service and a separate principal legal advisor to the government. This is the arrangement that exists in England and Wales, where the Attorney General sits in Cabinet as the UK Government’s senior legal advisor, but the Director of Public Prosecutions heads the Prosecution Service. A similar division exists in the Republic of Ireland.
An absurd claim
Kerr argues that separating the roles would reduce perceived or actual conflicts of interest, reinforce the independence of criminal proceedings, remove doubts about impartiality, and therefore strengthen public trust in the legal system. It would also permit for more targeted parliamentary scrutiny if required, with a dedicated legal advisor for the Scottish Government aligned with governmental objectives, whose focus is unimpeded by prosecutorial duties.
Such a reform would require an amendment to the Scotland Act, but consensus is growing that change is necessary. John Cooper, Conservative MP for Dumfries and Galloway, has secured time at Westminster for a “Ten-Minute Rule Bill” to be debated on March 11, the first step to introducing legislation on the matter.
The claim made by some that this should have been addressed previously by the Westminster administration is absurd – one can only imagine the reaction from nationalists if the UK Government had sought to rewrite the Scotland Act in such a fundamental way without Holyrood’s consent. But we are now past the point where action is required to deal with this long-running sore. The integrity of the Scottish legal system demands nothing less.
Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife
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