Scotland Act 1998: Role of the Lord Advocate

Debate between Kenny MacAskill and Joanna Cherry

Tuesday 20th July 2021 Commons Chamber

[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.