Scottish Law Officers (Devolution)

Joanna Cherry Excerpts

1st reading
Wednesday 10th January 2024 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I beg to move,

That leave be given to bring in a Bill to amend the Scotland Act 1998 to grant to the Scottish Parliament legislative competence in respect of the role and functions of the Scottish Law Officers; and for connected purposes.

My Bill is designed to give the Scottish Parliament the power to amend the role of Scotland’s Law Officers, including dividing the role of the Lord Advocate into two separate jobs: one as head of Scotland’s prosecution service, and the other as a Minister of the Scottish Government and its chief legal adviser. The present Lord Advocate performs both roles, and both legal scholars and politicians are becoming increasingly concerned that that may give rise to a conflict of interest, or at the very least a perception of a conflict of interest. I wish to stress that no criticism of the current or previous Lord Advocate, or indeed of the current SNP Government, should be inferred, because the dual role of the Lord Advocate is a historical anachronism that predates devolution.

The dual role was rubber-stamped by the devolution settlement, and to date no Conservative or Labour Government have attempted reform. I believe that reform is long overdue. The Scottish National party manifesto for the 2021 Holyrood election promised to consult on separating the roles of the Lord Advocate, and the Scottish Government have committed to review the role of the Lord Advocate by the end of the current Parliament, the initial phase of which is to be informed by expert research. I understand that a report on the expert research is to be published soon; however, because of reservations in the Scotland Act 1998 it is not open to the Scottish Parliament to create either a new Law Officer or a new public prosecutor. That is why my Bill is necessary.

Given that both criminal and civil justice are devolved matters, it is only right that the Scottish Parliament should decide how best to reform the role of the Lord Advocate. Furthermore, it is the Scottish Parliament that will be furnished with the necessary expert research that has been commissioned by the Scottish Government. If we are to take at face value assurances from the United Kingdom Government that they do not wish to undermine the devolution settlement, and that they respect the powers that have been devolved, I believe that they should leave it to Scotland’s Parliament to carry out the task of reforming the role of Scotland’s Law Officers.

The Lord Advocate is the senior of the two Scottish Law Officers. The other is the Solicitor General. The Lord Advocate is both a Minister in the Scottish Government and the holder of a historic office—the role of Lord Advocate goes back many hundreds of years—that now has a range of functions associated with the maintenance of the rule of law and the proper administration of justice.

The Lord Advocate is head of the systems of criminal prosecution and investigation of deaths. She is also principal legal adviser to the Scottish Government. She represents the Scottish Government in civil proceedings and the public interest in a range of statutory and common-law civil and constitutional functions.

The Scotland Act states that, in relation to criminal prosecutions and the investigation of deaths, the Lord Advocate must act independently of other Ministers and, indeed, any other person, and I believe that the Lord Advocates have acted independently. The former First Minister, the right hon. Alex Salmond, took steps to underline that independence by depoliticising the appointment process and providing that the Law Officers should not routinely attend Cabinet meetings. There was a downside to this: it deprived the Scottish Government of the benefit of advice from a lawyer who shares their political persuasion. Such advice was previously available to other Governments and is something from which the UK Government benefit.

The Lord Advocate is appointed by the King on the recommendation of the First Minister, with the agreement of the Scottish Parliament. Unlike other Ministers, she cannot be removed from office by the First Minister without the approval of the Parliament. The Lord Advocate has an important role in ensuring that legislation passed by the Scottish Parliament is within its legislative competence, and she has powers under the Scotland Act in relation to the resolution of legal questions about the devolved powers of Ministers and the Parliament. We saw that in action recently during the referral to the United Kingdom Supreme Court on the question of whether the Scottish Parliament had the power to hold a second independence referendum.

Accountability to the Scottish Parliament is an important aspect of the Lord Advocate’s constitutional role. She may, but need not, be a Member of the Scottish Parliament and, if not an MSP, she is entitled to participate in the proceedings of the Parliament but may not vote. She can therefore be questioned by MSPs about the exercise of her functions, although she is not required to answer questions or produce documents in relation to the operation of the criminal prosecution system in specific cases.

There is a tension in the principle that the Lord Advocate should be both independent in her capacity as chief prosecutor, but also politically accountable as a Law Officer. The Venice Commission of the Council of Europe, which advises member states on rule of law issues, recommends that member states take steps to ensure that their state prosecution systems are seen to act independently of Parliament and Government. For the record, I think the Scottish state prosecution system operates independently of Parliament and Government, but because the two roles are held by the one person, there is always the perception that that might not be the case.

Elsewhere in the UK and in the Republic of Ireland, the two roles are held by different people, which avoids any possible conflict of interest or the perception of one. In England, there is an Attorney General, who is a member of the Government of the day, and, quite separately, a Director of Public Prosecutions, who is appointed by a public appointment process completely independent of Government. Of course, there is the third office of the Lord Chancellor, who performs some constitutional functions. The experts advising the Scottish Government might want to think about something akin to that third role for some of the Lord Advocate’s functions under the Scotland Act.

Concern about potential conflicts in the role of the Lord Advocate has increased in recent times because of some high-profile cases, including the Scottish Government’s handling of complaints against Alex Salmond, the malicious scandal in relation to prosecutions over the takeover of Rangers football club, and the police investigation into SNP finances. It is important to understand that similar concerns have been raised in the past. In the early days of the devolved Scottish Parliament when Labour was the Government, in the wake of the resignation of a Labour-appointed Lord Advocate, there was a big debate about the potential conflict of interest prompted by concerns around the Lockerbie prosecution, the growing importance of the European convention on human rights under devolution, and the Lord Advocate’s then role in some judicial appointments. There was considerable disquiet back in 2000 that the Lord Advocate was performing the role of politician, prosecutor and judge-maker.

Since 2002, the appointment of judges in Scotland has been the responsibility of an independent panel. The Lord Advocate has no involvement in that, so her role does not really pose—as some people sometimes say—a problem for the constitutional principle of the separation of powers. This is not an issue of the separation of powers between Executive, legislature and judiciary, because the Lord Advocate does not have anything to do with the judiciary.

To come back to present times, the report of the Scottish Parliament’s inquiry into the Scottish Government’s handling of harassment complaints found that events around those issues had shown a

“long-standing tension in the Lord Advocate’s dual roles,”

and said that “public perceptions” were important. It is important that the role of chief prosecutor in any state be free from all suspicion of political interference. I stress that I am not saying that there has been political interference; I want to protect the role from the suspicion that there might be.

It is also important that Scottish Governments of whatever political hue have the benefit of a legal adviser who shares their political views while still giving independent advice. That, after all, is what the UK Government, Welsh Government and Irish Governments enjoy. Their Law Officers are usually parliamentarians from the same party as the Government of the day.

As I said, the Scottish Government have accepted that there is a case for separating the two roles of the Lord Advocate. I am delighted that both the Secretary of State for Scotland, who is in his place, and his shadow, the hon. Member for Edinburgh South (Ian Murray), who explained to me why he could not be in his place for this Bill, agree that there is a case for separating the two roles. My Bill has support from the Liberal Democrats, the Alba party and a distinguished Conservative Back Bencher, as well as SNP colleagues. I hope that the existence of cross-party support means that this private Member’s Bill has a chance of becoming law, leaving the final decision on the role of Scotland’s Law Officers where it should be: with the Scottish Parliament.

Question put and agreed to.

Ordered,

That Joanna Cherry, Chris Stephens, Douglas Chapman, Patricia Gibson, Carol Monaghan, Marion Fellows, Ronnie Cowan, Kenny MacAskill, Mr Alistair Carmichael, Wendy Chamberlain, Christine Jardine and Sir David Davis present the Bill.

Joanna Cherry accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 22 March, and to be printed (Bill 76).

Finance Bill (Programme) (No. 2)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the Order of 13 December 2023 (Finance Bill: Programme) be varied as follows:

In paragraph (5) of that Order, for “Thursday 18 January” substitute “Tuesday 30 January”.—(Robert Largan.)

Question agreed to.