Options to split Lord advocate's dual roles revealed after Peter Murrell memo row

The Scottish government has published its delayed independent research by former chief executive of the Scottish Law Commission, Malcolm McMillan, despite a peer review on the paper having concluded six months ago and a previous vow to make it public by the end of 2025.

Last month, First Minister John Swinney confirmed that no decision on the future of the Lord Advocate’s roles would be made until after May’s Holyrood election, branding the current set-up “appropriate”.

A row reignited after it was revealed that Lord Advocate Dorothy Bain had briefed the First Minister over embezzlement charges facing former SNP chief executive Peter Murrell before they were made public.

READ MORE: John Swinney confirms no decision on splitting lord advocate dual role until after Holyrood election

Opponents argued this had given Mr Swinney a political advantage and was blamed on the Lord Advocate being both the Scottish government’s chief legal adviser and the head of the prosecution service.

One potential option in Mr McMillian’s research, which will inform any decision on splitting the roles, includes mirroring the system for England and Wales with separate equivalent roles as director of public prosecutions (DPP), who leads the prosecution service, and an attorney general, who advises the government on legal matters.

In his report, Mr McMillan said: “If there were to be an office of a director of public prosecutions in Scotland, and a role for a law officer similar to that of the attorney general in England and Wales, a question arises as to the status of the respective offices.

READ MORE: Lord Advocate admits 'uncomfortable' look to briefing Swinney about Murrell amid claims she misled Holyrood

“It is also thought that there is significant value in the DPP office not being a role for an official, but a ministerial one, so that public accountability rests with a minister who is directly responsible for the function.”

Another potential option proposed by Mr McMillan is a “non-legislative approach” that would not necessarily require amending the Scotland Act, which would involve “the Lord Advocate to consider putting in place an formal allocation of functions as between herself and the Solicitor General for Scotland”.

He suggested this would “separate out between them responsibility for each of these functions”.

Mr McMillan added: “One aim for example might be to allocate to the Solicitor General responsibility for legal advice to the Scottish government, while the Lord Advocate continues to perform the role as the head of the prosecution and the investigation of deaths systems.”

READ MORE: New documents reveal John Swinney told about Murrell charges a year ago

But he warned that this approach “may raise consequent significant issues about performance of a number of the Lord Advocate’s other functions”, adding that “there still would be a continuing connection between the Scottish law officers, the Lord Advocate being the senior law officer”.

The publication comes as Scottish Conservative MP, John Cooper, will today (Wednesday) present a ten-minute rule bill at Westminster to end the dual roles of the Lord Advocate by amending the Scotland Act.

Mr Cooper, the MP for Dumfries and Galloway, said: “It’s wrong that the same person is both Scotland’s top prosecutor and a member of the Scottish Government.

“The two roles are clearly incompatible and immensely harmful to the reputation of Scots law.”

He added: “The SNP government pledged to address this anomaly in their 2021 manifesto – but they have done nothing since.

“They could have sought a Section 30 order to change the law themselves, but their broken promise has led me to put forward this bill to try to change things at the Westminster end.”