Is it finally time to consign the dual role of the Lord Advocate to history?

Peter Ranscombe asks if the time has come to split the Lord Advocate’s dual role as Scotland’s chief prosecutor and the Scottish Government’s top law officer?

If you were to sit down with a blank sheet of paper and draw up a constitution for a modern democracy then you’d be unlikely to make the same person the head of the prosecution service and the chief legal adviser to the government’s ministers. Yet that’s exactly what we have in Scotland.

The Lord Advocate is both the head of the Crown Office and Procurator Fiscal Service (COPFS) – and thereby responsible for criminal prosecutions and the investigation of deaths – and the chief legal adviser to the Scottish Government, sitting in its cabinet as one of its two law officers, alongside the Solicitor General.

The dual role has historic roots: the Lord Advocate’s position as chief prosecutor was enshrined into law in 1587 and, following the Union of the Parliaments in 1707, the post-holder also became an adviser to the fledging British Government, often acting as Scotland’s voice in cabinet. Yet that dual function has seldom been without controversy, with opposition gathering pace following devolution, as Christine O’Neill examined in 2000 for The Journal.

Calls for reform grew louder last year after it emerged that Dorothy Bain, the former Lord Advocate, had briefed First Minister John Swinney about the prosecution of former Scottish National Party chief executive Peter Murrell almost a year before details became public.

The timeline was revealed within a letter detailing about 30 other cases in which the Lord Advocate had updated the Scottish or UK Government on specific legal cases during the past 30 years. Liam Kerr, a former employment lawyer who became a Conservative list MSP in 2016, outlined some of the other more recent tensions surrounding the dual role in an essay for Edinburgh University Press’s Scottish Affairs academic journal late last year.

After this year’s Holyrood election in May, Bain announced her intention to step down as Lord Advocate, following the pattern of post-holders resigning after five years in office. Swinney has named Ruth Charteris, who served previously as the Solicitor General, as Bain's successor.

In March, the Scottish Government ruled out splitting the Lord Advocate’s dual role. Its decision came following a review by Malcolm McMillan, a former chief executive of the Scottish Law Commission, which had been commissioned by the Scottish Government before the political row over the Murrell case. Yet, with the abolition of the ‘not proven’ verdict at the turn of the year, is the dual role of the Lord Advocate the next sacred cow of Scotland’s legal system to be sacrificed on the altar of reform?

Public confidence and public understanding 

“I am swithering a bit on the whole thing,” admits Dr Andrew Tickell, head of the Department of Economics and Law at Glasgow Caledonian University. “The issue of public confidence is important and – while there’s a degree of mischief and self-serving arguments made by partisans who have strong feelings about the various recent cases – it is a challenge in terms of the public’s understanding of how the two functions work. It’s confusing to people about how one person can wear these many hats at the same time.

“You could split them; the Lord Advocate could become solely the chief public prosecutor and then create a separate role – call it an ‘Attorney General’ or something similar – to act as the Government’s legal adviser in Holyrood. We’re dealing with a very complicated devolution setup, and therefore there might be advantages in having a legal adviser in cabinet who did have a clearer and more limited set of functions and didn’t have to think about the Crown policy around prosecutions on top of that.”

Other commentators remain tight-lipped on the issue. “A spokesperson for the Faculty confirmed that the Faculty of Advocates would not be providing any comment in respect of this matter,” was among the responses, with a score of professional bodies, universities and senior figures in the legal sector declining to share their views.

Wider discussion needed on legitimate political and policy input

Andrew points out that – within the wider discussion about the dual positions of the Lord Advocate – there are legitimate political dimensions to both their role as a law officer advising the cabinet and in setting policy for the COPFS, although he draws a clear distinction between “party politics” and the politics that shape public policy. He highlights that, before devolution, the Lord Advocate was part of the political infrastructure of Conservative and Labour governments at Westminster, but that former First Minister Alex Salmond didn’t follow through on his promise in 2007 to “depoliticise” the role.

While recognising that, in England and Wales, the role of Attorney General as a law officer is separate to that of the Director of Public Prosecutions), Andrew thinks there are advantages to having a lawyer with political knowledge around the cabinet table. “Dominic Grieve made the point that he found it very useful being a Conservative MP as well as Attorney General because, when he was raising legal issues in cabinet about what the UK Government wanted to do, there wasn’t the same immediate reflexive sense that this was just civil service-speak justifying an activity, but instead a kind of political fellow traveller was telling you that there were legal problems and therefore you should probably believe them,” Andrew says.

“The Lord Advocate’s prosecutorial role also has a legitimate political dimension. Holders of the post may not want to look at it in that way, but what they choose to prioritise can be significant politically. For example, Dorothy Bain exercised her powers to open the door to the drug consumption facility in Glasgow and ramped up the number of appeals against unduly lenient sentences in serious sexual offense cases. That’s not an accident or a bureaucratic thing – it’s a policy choice.

“When it comes to the Lord Advocate’s role, it would be a terrible mistake to imagine that what we need is just some kind of official who will not have any agenda or policy or ability to shape what Scotland’s prosecutors are prioritising –  shaping policy is clearly a major part of what the Lord Advocate is for.”