Lord Advocate's note to John Swinney about Murrell case speaks volumes about how SNP runs Scotland
On so many fronts, the wheels of government appear to be too cosy, too secretive and too self-serving
“I roundly reject any suggestion that I am corrupt or that my position is compromised,” declared Dorothy Bain, current holder of a great office of state that dates back to Scotland of the 15th century.
It was undignified stuff, brought upon Ms Bain by herself. I have no difficulty believing she is not corrupt. Equally, the dual nature of the Lord Advocate’s role exposes her to legitimate concerns about actions with political implications.
This is particularly true when, wearing one of her hats, she is chief legal adviser to a government that routinely and cynically uses the courts in pursuit of delay and evasion where anything politically inconvenient is at stake.
Bain’s note to Swinney
In Scotland the devolved village, the need for clear separation of powers between political interests and the legal system has increased with every doomed court case the Scottish Government pursues at public expense. Yet the perception is that they frequently overlap.
It has emerged Ms Bain wrote to John Swinney to give notice of the indictment against former SNP chief executive Peter Murrell, who is charged with embezzling money from the party, nearly a month before details were published.
Her defence for doing this seems to rest on the assertion that, having recused herself from the case, she was letting Mr Swinney know about her lack of involvement. And by the way, here’s a few other details thrown in.
A competent procurator fiscal in your local Sheriff Court could have great fun tearing that defence to shreds. “So you wrote to the First Minister about the case, Ms Bain, in order to confirm that you had nothing to do with the case. Does that not seem unlikely, m’lud?”
Of course, the letter – or tip-off as some would see it – to Mr Swinney had another purpose as Ms Bain repeatedly contended. It was to “ensure that there is no inappropriate or unlawful comment on live proceedings”.
Ms Bain’s plea to MSPs continued: “I have to protect ongoing live cases in respect of which there has been a sharing of a significant development that has entered the public domain in a sensitive case.”
To the lay mind, it might seem that the last person one would write to in this particular “sensitive case”, if the objective was to ensure circumspection, would be the leader of the political party at the centre of that case.
Not corrupt, but naïve
Every first-year law student knows there should be no public comment on live cases, so why did this have to be spelt out to the First Minister – given the reasonable expectation that information contained in her advice to him would be shared with colleagues and spin-doctors for its political usefulness? Not corrupt, but certainly naïve.
As Fergus Ewing MSP, with benefit of a legal background, put it: “Having recused herself, would it not at least have been prudent and politic, if an intimation was to be made to the First Minister, for that to have been made by the named senior prosecutor in charge of leading the case? Had that been done, the Lord Advocate probably would not be facing a number of pretty obvious and serious questions to which the public are entitled to have direct answers.”
At this juncture, the public has not had these answers. One obvious question which one might have expected Ms Bain to have prepared herself for was about precedents for her missive to the First Minister. How regular an occurrence was this and could she provide examples? Reasonable questions for which no answers have yet been forthcoming.
Meanwhile, the last non-nationalist First Minister, Jack McConnell, has drawn on his own experience. “I cannot recall ever being briefed ahead of such a case on charges or timetable, and it would always have been particularly unacceptable for such information to be requested for a case where I had any connection to the accused.”
Long-standing concerns
There were concerns around the nature of the Lord Advocate’s role long before Ms Bain held it. For example, in the context of the Lockerbie investigation, Professors Köchler and Black raised this in 2008 when they wrote: “It is inappropriate that the chief legal adviser to the government is also head of all criminal prosecutions…
“Whilst the Lord Advocate and Solicitor General continue as public prosecutors, the principle of separation of powers seems compromised. The potential for a conflict of interest always exists.” That warning seems even more relevant today and it’s surprising Ms Bain was so oblivious to it.
For most people, the ‘smell test’ is likely to be the extent of their interest in these matters. The fact that, by one device after another, a public airing of the Murrell case has been delayed until after the Holyrood elections in May has already caused some sniffing – though most would have greeted it with an ironic: “Well, there’s a surprise!”
Ms Bain’s missive to Mr Swinney carries a more powerful odour, since it goes to the heart of how Scotland is run. Any reasonable person can recognise there was a potential political advantage to the government which Ms Bain advises when she gave Mr Swinney the heads-up on a criminal case of unusually direct political interest. Her position may not be beyond protection, but it’s certainly compromised.
For the public, one detail in the letter should be of equal concern. If the case goes to trial, Ms Bain vouchsafed, it will not start until March next year – three years after Mr Murrell was charged. If we accept Gladstone’s maxim that “justice delayed is justice denied”, then a lot of denial is going on across Scotland.
It is difficult to avoid the conclusion that, as on so many fronts, Edinburgh’s interlocking wheels of government are too cosy, too secretive, too self-serving, and based on an assumption of untouchability which only voters can disturb.
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