The role of the Lord Advocate: time for radical change or cautious reform?

James Wolffe QC

This week he found it necessary to powerfully reassert the independence of the Crown Office in the wake of a call made by Labour’s new Scottish leader, Anas Sarwar, for the role of the head of the prosecution service and the Scottish government’s chief legal adviser to be separated.

Mr Sarwar told the BBC: “Real questions have to be asked about the separation of power between the person who is charge of prosecutions in Scotland and the chief legal advisor to the government. I think that role should be separated.”

In recent days, Mr Wolffe has had to explain complex issues to a media in a feeding frenzy that was frequently unwilling or, it is sad to say, unable to accurately report his evidence. This has allowed the perception to grow that the position of any Lord Advocate will always be compromised by that officer being a member of the cabinet.

Professor Hector MacQueen told Scottish Legal News that James Wolffe is “amongst the finest lawyers of his generation as well as a person of profound integrity and intellectual honesty”.

Political scalp-hunters, self-appointed online-experts and journalists pursuing a bigger story have sought to impugn that integrity. So what can be done to prevent this situation arising again?

The distinguished former Supreme Court justice and House of Lords cross-bencher Lord Hope of Craighead favours reform over radical change.

He told SLN: “There is obviously a perception problem here that needs to be solved. In the ordinary course of events the system works well enough, but it has been tested very severely here. To separate the roles is a very big step to take. The disadvantages would need to be carefully assessed.

“I think that a possible alternative would be for a protocol to be established and made public, a bit like the Ministerial Code, which would set out where the boundaries lie. If they had been clear from the outset, we might well not have been in the situation we are now.”

Professor John Cairns provides some historical context to the position of Lord Advocate.

He told SLN: “The Lord Advocate has always been a powerful figure; he was once a member of the Scottish Privy Council until its abolition in 1708 and took on immense political importance and power in the later eighteenth and early nineteenth century.”

He added: “It was being Lord Advocate that gave Henry Dundas, for example, his initial power base, before he went on to greater things.”

The Lord Advocate began life as lawyer for the monarch in the late fifteenth century, before taking on more power.

“Towards the end of the sixteenth century, in 1587, the Lord Advocate became increasingly involved with the prosecution of crime. Generally, crimes had been prosecuted by the relatives of the victim. But the Lord Advocate started to be involved for the interest of the monarch in collection of fines, escheats and so on.

“His role progressively excluded and effectively supplanted private prosecution.”

Professor Cairns said he suspected there had been little conflict until devolution. “The Lord Advocate sat in Westminster. He was not a cabinet member though he would advise the government on Scottish legal matters.”

He added: “No doubt in matters of difficulty and political sensitivity, the Lord Advocate would be consulted, as well as being the minister in charge. In the past, the Lord Advocate would sometimes prosecute, and will still occasionally appear in court. The Lord Advocate always had a party affiliation, but certainly in the recent past, this has generally not been seen as significant in decisions on prosecution.”

Nonetheless, the problem of perception remains and the question of whether the Lord Advocate should sit in cabinet remains open.