Scotland Act 1998: Role of the Lord Advocate

Kenny MacAskill Excerpts

Tuesday 20th July 2021 Commons Chamber

[Kenny MacAskill (East Lothian) (Alba)]

I believe that many of the ills that afflict Scotland can be laid at the door of this Tory Government. The Tories have not been elected in Scotland not just for the 55 years of hurt experienced by English football fans, but for 65 years—longer than I have lived. Independence is therefore essential, but not all ills rest there; some, along with our demons such as alcohol and violence, can and must be addressed by ourselves. The role of the Lord Advocate is one.

The Lord Advocate and Law Officers, along with Ministers, are part of Scotland’s offices of state. They are enshrined in the Scotland Act 1998, which established the Scottish Parliament. That is why legislative change is required, so I am grateful for the opportunity to raise this issue. I welcome the willingness of the UK Government to assist, and I hope that urgency will now be shown by the Scottish Government. Scottish democracy badly requires it.

Before the post of Secretary of State for Scotland was created, the Lord Advocate was the power in the land, and some postholders were despotic indeed. The transportation of Thomas Muir and the hanging and beheading of Baird, Hardie and Wilson, the Scottish radicals and 1820 martyrs, are crimes that lie with them. Thankfully, the post devolved and became a purely legal role, but an anachronism was built in, for the postholder is both principal legal adviser to the Scottish Government yet also head of the prosecution service—the Crown Office, as it is known. That is something replicated neither elsewhere in the United Kingdom nor, indeed, in any modern democracy. Conflict of interest precludes it. In England and Wales, an Attorney General advises the Government from within. Meanwhile, a head of the prosecution service is both separate and independent from Government. But not so in Scotland, and therein lies the problem.

To be fair, apart from those despotic years, postholders, irrespective of political hue and whether pre or post-devolution, have acted with the impartiality expected. Modest steps were taken to mitigate the conflict of powers. Under Alex Salmond’s Administration a convention was invoked that the Lord Advocate appeared at Cabinet only when legal advice was to be given and did not participate in wider political debate. But the anachronism still lingered. Under Nicola Sturgeon’s Administration it has been brutally exposed by both Scottish Government and Crown Office actions, with the Lord Advocate straddling both. Change is now needed, and fast.

Firstly, there has been an admission by the outgoing Lord Advocate of malicious prosecutions involving the administrators in the Rangers FC liquidation. That is unprecedented in Scotland, not just in recent years but since those days of the early 19th century. Even south of the border there have been no such cases since 1999, and high-profile cases before such as the Winston Silcott and Daniel Morgan cases were rare. It has caused alarm with the public and been of huge reputational damage in an organisation where impartiality is imperative. It has also caused consternation and anger within police and prosecution services, where the overwhelming majority of staff act without bias and free of any favour or prejudice. The reputation of the many has been traduced by a few.

It was the former Lord Advocate’s decision, and seeking to cast blame on his predecessor was shameful and inadequate. An inquiry, perhaps even by a non-Scottish judicial figure, has been promised. Additionally, there is the financial cost. The quantum of damages is for the court, but suggestions are that the final bill could reach £60 million or £80 million—this in an organisation with an annual budget of £300 million, struggling to meet existing commitments. The price will be paid by Scottish taxpayers and the loss felt by hard-pressed Scottish public services.

Secondly, and just as alarming, has been the role of the Lord Advocate and a coterie around him within the Crown Office in the Alex Salmond case, and the fallout from it. It is another instance of the public having to pay the price of Government incompetence, with the legal expenses bill in the civil case amounting to £500,000, but where the issue of impartiality as well as competence was raised. In the civil case, the presiding judge described the Scottish Government’s actions as “unlawful”, “unfair” and “tainted by apparent bias”. During proceedings, senior external counsel, Roddy Dunlop QC, dean of the Faculty of Advocates, expressed horror at the situation he and his colleague had been put in by their client. They could no longer rest on pleadings they knew to be untrue. The client was the Government, and their senior legal adviser was the Lord Advocate. A criminal case followed the failed civil case and was prosecuted by the Crown Office, where the same Lord Advocate remained in office.

Despite growing pressures on police and prosecution, nothing has been spared—nothing has been too trivial—but the targets always seem selective. The Alex Salmond case saw resources deployed that are normally reserved for serious organised crime figures or serial killers, for charges that, were it not for who was being prosecuted, would either never have seen the light of day or appeared only in the lowest courts, not the High Court. I say that as someone who was Justice Secretary for seven and a half years but also a defence agent for 20 years. As it was, Mr Salmond was acquitted on all charges, by a majority female jury.

It is standard practice in cases involving politicians that the Lord Advocate recuses himself from involvement in the consideration or prosecution of the case, and that was done here, with no direct involvement in the prosecution. However, at the same time, the Lord Advocate had been, and was, sitting on Scottish Government committees dealing with the civil case, where referral or prosecution was being actively sought and advised by the Administration.

Let us recall that a prosecution was sought by the Scottish Government, as the actions of the director of human resources in contacting the police confirm. Many—indeed, most—complainers were and remain at the heart of Government, or are officials or otherwise closely linked with the governing party. Prosecution was encouraged and pressed for by the chief executive of the governing party, who is the First Minister’s husband.

Chinese walls and recusal are entirely inadequate. In one role, the Lord Advocate was supporting a Government pursuing prosecution; in another, he was denying that it was anything to do with him. A separation of powers this certainly was not. When James Wolffe appeared before the Holyrood Committee considering the Salmond prosecution, he was frankly evasive and obfuscating, mirroring the actions of the Crown and the Government in a lack of openness and transparency. There was neither contrition nor candour. Open government this certainly was not.

The fallout and failures continue to reverberate. Following on from the Alex Salmond case has been that of Craig Murray, a writer and former diplomat. His conviction is under appeal at the Supreme Court; accordingly, I refrain from commenting on specifics of the case. Instead, I restrict my remarks to the decision by the Crown to prosecute Mr Murray for jigsaw identification of complainers in the case. Why was he prosecuted when others who did so—in one case certainly overtly, and in many others much more flagrantly than by Mr Murray—were not? No action was taken against them.

Moreover, publications that in any other case would have constituted a clear contempt of court went without censure by the Crown. They included newspaper articles as prejudicial as I have ever seen, but they were supporting prosecution, whereas Mr Murray, though seeking to report factually, was not. It seems that the Crown has one law for those supporting the Government line and another for those who challenge it.

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)]

My hon. Friend will be aware of the case of journalist Mark Hirst, who was arrested and charged with threatening and abusive behaviour. However, when that case went before Sheriff Paterson, he ruled that there was no case to answer, and that Hirst had simply been giving his opinion of the situation in the SNP and no more than that. There are also cases of police knocking on doors for single tweets, and others that are sub judice or where charges have yet to be brought.

All this is exerting a chilling effect on democracy in Scotland. Does my hon. Friend share my concern that, even in the absence of any evidence of wrongdoing or malfeasance, any continued failure by the Scottish Government to address the separation of powers reinforces talk of deliberate and targeted harassment of individuals critical of the Scottish Government, their policies and their leadership, including their role in the Salmond affair?

[Kenny MacAskill]

Absolutely. There is a clear perception of there being far from equanimity or, indeed, even balance by the Crown.

Now James Wolffe has stepped down as Lord Advocate, replaced by Dorothy Bain. Ms Bain has an illustrious record of service and I wish her well, but the structural flaw remains. Personnel changes, no matter how merited, cannot resolve the fundamental flaw of a lack of separation of powers. The impartiality of the Crown is an imperative in a democracy. It must be seen to act in the public interest, not that of the Government or their friends or allies. The coterie who surrounded Mr Wolffe and who were instrumental in driving these policies and actions, often against the wishes and views of long-serving staff, still remain—in particular, the Crown Agent, Mr Harvie, the senior civil servant. Unusually among senior Crown staff, his career has not simply been as a procurator fiscal in Scotland, but has included service in and secondment to British Government Departments.

The situation is now critical as a police investigation has opened into the SNP’s finances. The party leader is the First Minister and her husband is chief executive. This situation would be intolerable in any public body or private company, or even in a bowling or social club in any Scottish town. The idea that the chief steward could be the spouse of the treasurer would draw derision and rejection, but not so in Scotland’s governing party. Worsening that further is the fact that all three members of the SNP finance and audit committee resigned from their roles when refused information by the chief executive. That has been followed by the resignation of the elected treasurer, the hon. Member for Dunfermline and West Fife (Douglas Chapman), for similar reasons. Given what has happened, can the Scottish public be assured that the investigation will have access to all information, and that any decision to prosecute or not will be made on legal criteria and in the interests of justice?

Protocols have failed, been breached or even abused. Interim steps can be taken to separate the roles. Perhaps there should not just be a recusal, as there no doubt will be by the Lord Advocate, but, as with the Rangers FC investigation, the bringing in of an external judicial adviser. Moreover, the Lord Advocate has recused herself from involvement in the Rangers FC civil proceedings. Maybe she could recuse herself from all direct Government involvement. An in-house legal department exists. The duty to represent the Government in court and pursue constitutional challenges remains, but that can be dealt with by external counsel.

Change and a separation of powers there must be. The twin roles of the Lord Advocate in prosecution and in advising Government are an historical anachronism, and are entirely unsuited to a modern democracy. As a former Justice Secretary, as well as someone who has practised law in Scotland for over 20 years and cherishes our distinct system, I am appalled at what has happened, and I know that is echoed in legal circles.

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

I am very grateful to the hon. Gentleman for giving way. I am not going to comment on any of the particular cases that he has mentioned, but is he aware that the First Minister of Scotland has recognised that there is a case for reform and does he agree that all that is really needed is for this House to pass a Bill to amend the Scotland Act to give the Scottish Parliament the power to make alterations to the role of Lord Advocate? The Scottish Parliament could then properly consider what I think he is suggesting—that is, separating the position into roles akin to the Attorney General and the Director of Public Prosecutions in England. I stress that I am not making any comment on the cases that he has mentioned. I am simply drawing to his attention the fact that the First Minister has recognised the case for reform and that this might be the best way to do it.

[Kenny MacAskill]

Recognition is one thing; progress is quite another. We are now in July. Holyrood is in recess. We have had an election. And we are still to see any action other than rhetoric from the Scottish Government. It is entirely inadequate. I do accept what the hon. and learned Member says—that it should be for the Scottish Parliament to decide what the structure should be. I think it has to be a structure that will mirror most democracies south of the border or indeed elsewhere. It should be for the Scottish Parliament to decide, but they have to show greater willingness.

I call on the Minister to engage with the Scottish Government as a matter of urgency so that changes can be made to the 1998 Act to provide for a complete separation of powers between the head of the prosecution service and the senior government legal adviser. Every modern democracy does so and so must Scotland. The failures have been too many and the risks are too great, for justice has not only to be done, but must be seen to be done.