Scots lawyers call for role of Lord Advocate to be split

One of Scotland’s Great Officers of State, the Lord Advocate has always been powerful, though his dual role has, in recent decades, sat uneasily in the Scottish legal system. Matters have now come to a head as a consequence of a Holyrood inquiry into how First Minister Nicola Sturgeon and others handled harassment claims made against Alex Salmond.

Of the 350 respondents to the 24-hour poll, 285, or 81.4 per cent voted in favour of division of the Lord Advocate’s role into new ones functionally equivalent to those of attorney general and director of public prosecutions in other jurisdictions. Forty-two, or 12 per cent, of readers, voted against division while only 6.6 per cent were in favour of preserving but limiting the dual role of the Lord Advocate.

Of the incumbent, James Wolffe QC, said one: “The present holder of the office is an outstanding individual but that is no argument for preserving an office that objectively speaking involves a clear potential conflict of interest. If the post of Lord Advocate were created now, of new, it would be at risk of immediately being struck down by judicial review.”

Another stressed the importance of perception, saying: “The separation of the roles would not only increase public confidence in the apolitical nature of the post but also allow for more targeted parliamentary scrutiny if required. In my experience of rule of law programmes worldwide, one of the key challenges for public confidence is the perception if not reality that government officials can shield themselves from criminal proceedings. The perception can have as disastrous an effect as the reality.”

One respondent said there is no reason for a single person to have both roles, adding: “While I’m sure Mr Wolffe has conducted himself properly and with integrity throughout this episode, this seems to me like one of the situations where it is not enough that the right thing is done, but the right thing also needs to be seen to be done.”

It was also said that “an attorney general and director of public prosecutions seems the most sensible way forward, ensuring an actual and – importantly – perceived separation of powers”.

Some argued that the office had suffered under devolution. It was suggested the convention “pre-Sturgeon that the Lord Advocate does not attend Cabinet meetings unless specifically requested in order to give legal advice” ought to be reinstated and that the ancient office had been “damaged, as has much else in Scotland, by the imbalance of a lopsided and cobbled together devolution settlement”.

Those in favour of reform endorsed the suggestion made by Lord Hope of a code that delimits the Lord Advocate’s functions “to ensure, and to be seen to ensure, that he exercises his functions as head of the system of prosecutions and investigation of deaths completely independently of his functions as the chief law officer and member of the Scottish government”.

Another reformist warned that splitting the role might make it unattractive for candidates of Mr Wolffe’s calibre and agreed with Professor Hector MacQueen that the incumbent is “amongst the finest lawyers of his generation as well as a person of profound integrity and intellectual honesty”.

“Professor MacQueen is absolutely correct in his assessment of James Wolffe. Lord Advocate is a vital role within the Scottish constitutional settlement. If the role is diluted Scotland will be the loser. It would be wrong to split the office as a knee-jerk reaction to perceived issues in the system.”

Reform of the office of Lord Chancellor at Westminster was cited as a cautionary tale. The Lord Chancellor formerly had executive, legislative and judicial functions until the office was hollowed out under New Labour. The role has deteriorated since then, warned one reader.

“It is less than 20 years since the role of the Lord Chancellor was reformed. The Lord Chancellor was a government minister, the senior judge in the judicial committee of the House of Lords and speaker of the House of Lords sitting in its legislative capacity. Since the separation of the Supreme Court from the House of Lords, the post of Lord Chancellor in the UK government has been occupied by non-lawyers, some of whom have been particularly undistinguished.

“Let us hope that a similar fate for the office of Lord Advocate can be avoided.”