End of the Line for the Lord Advocate

Is it the end of the line for the post of Lord Advocate or at least in the the hybrid role that it presently possesses? It always was an anachronism post but the actions of the current incumbent have almost certainly tarnished it, probably ensuring long overdue separation of its responsibilities and powers.

James Wolfe QC is a learned lawyer but may well be the last of the dual role Law Officers and given his record in office few will lament its passing, or possess much sympathy for him.

Almost, it not uniquely in Scotland, the incumbent’s both Chief Prosecutor and head of the Crown Office and Procurator’s Fiscal Service, as well as being the Governments principal legal advisor with a seat, albeit on occasion, within Cabinet. In England for example it’s the Attorney General who provides advice to Government and sits in Cabinet, with the Director of Public Prosecutions leading criminal prosecutions in the public interest and devoid of political involvement.

Most other jurisdictions have similar divides between legal advice to government and criminal prosecution. There’s good reason for that given the complexities of modern society and the requirement for prosecution to be independent of political influence. Conflating the roles challenges that requirement for a perception of free and fair action.

But it can also result in an overlap of involvement from the different roles involved and that rightly raises questions of the impartiality of the organisation, if not the office holder. The Alex Salmond civil and criminal case have highlighted that and its hard to see how the present incumbent can avoid being dragged into the morass that’s the Holyrood Inquiry, with questions asked about when and what was being done, and by who and in what capacity.

In past centuries in Scotland it was the Lord Advocates office rather than the Secretary of State for Scotland that ruled the land. Some indeed were infamous and even despotic characters. It was only with the restoration of the Secretray of State’s post, that the post resorted to being soley a legal office, as opposed to political one. Thankfully, both then and in more recent times there have been many who have served with distinction, making great contribution to both law and land.

More recent steps have been taken to refine it further and reduce the potential conflicts of interest. The first SNP administration saw the previous incumbent Dame Eilish Angiolini re-appointed confirming the non politically partisan nature of the position. In past Holyrood and Westminster administrations it was routine for a party sympathiser from within the legal profession to be appointed. Though some such as John McKay and indeed Dame Eilish herself were rightly viewed as being entirely neutral and her appointment sought to confirm that.

Additionally, and more importantly, a change was invoked that Law Officers only attended Cabinet meetings for items in which they had a direct involvement or were giving advice in their legal capacity. That sought to ensure that there was no involvement by Law Officers in political debate or decisions being taken, other than in legal advice that might be tendered. It no doubt also ensured that individuals with a busy and complex load didn’t require to sit through meetings in which they’d neither involvement nor interest.

But its hard to see how that dual role can now continue. James Wolfe’s record has been unedifying to say the least. To be fair, blame for internal staff dissent in Crown Office, can’t be pointed solely at him. It’s longstanding in many aspects and widespread across much of the public sector. However, as well as his legal advisory and prosecutorial duties, he’s also in overall charge of the COPFS, and accordingly has managerial duties that equally require his attention. The buck ultimatley therefore stops with him.

Delays in the service provided have lengthened considerably and not all can be put at the door of coronavirus. As is frequently and correctly stated “Justice delayed is Justice denied” and the failure to ensure swift action has tarnished the service and simply heightened rumour and speculation. Due process is necessary but urgency requires to be shown.

Obduracy rather than flexibility has been the maxim in dealing with drugs. Despite the Scottish Governments significant difficulty and the crisis in many communities, little effort has been made to find a way through a Westminster policy that’s clearly failing. Rather than seeking to assist the adminsitarion in finding a way throiugh the mire, instead he’s brought down ire upon them through his actions against those seeking to save lives.

Worse still has been the admission of malicious prosecution. That’s unprecedented in modern times and goes to the very heart of a service that’s both meant to and must be impartial in a democracy. This has caused consternation, and even anger, both within the sevice and in the police where rumour has it that it’s a position strongly disagreed with. But whatever happened, the failure to properly account for it and attempts to blame past office-holders are shameful. The cost to the public purse will be massive but the reputational damage to the Crown Office’s incalculable.

Those problems in the day job are serious enough but it’s in the more political aspects of the role that even greater issues arise. His vaccilation on, if not objection to, the core constitutional policy of the Government and its method of obtaining independence makes you wonder why he was appointed in the first place?

The role of Law Officers is, of course, quite correctly non political. However, having an appointee who is at least sympathic, and certainly not opposed, to the direction of travel and route being taken seems a sensible start.

As the Martin Keatings court case highlights though and the failure of the Scottish Government to have pushed for a S30 order, let alone considered a consultative referendum confirm, their senior legal advisor doesn’t agree. What’s coming out in papers can only be embarrasing to a Government committed to a referendum on Independence. It’s not as if that’s set in tablets of stone and rote learnt in any Scottish Law School. Instead it’s a moot point as the ongoing action confirms and having a lawyer that believes in and will pursue the cause seems a good start.

Worse still’s what might come out from the Holyrood Inquiry into Scottish Government actions in the Alex Salmond civil and crimninal cases. The Lord Advocate appears to have sat in committtees that were pursuing the former whilst recusing himself from any role in the latter. Time lines and documents will confirm what he knew and when and what he was doing and where. His appearance before the committee hardly enhanced a policy of openness and transparency, and his obfuscation and refusal to answer simply heightened questions that remain about his role.

In any event, the idea that he can recuse himself from one role whilst acting wholeheartedly in another’s patently absurd. At minimum those acting in his stead must be concious of his views and actions being taken by him in another capacity. They work to and under him. Public perception at least must be compromised, if not actions taken that have followed.

The unleashing of Police Scotland upon individuals during that case and supportive of Salmond, has been in marked contrast to actions arguably prejudicial both before and during the trial by the mainstream media. Similarly, what borders upon a continuing campaign in the fallout from that trial’s an abuse of the Crowns powers of direction over the police. Little wonder that officers carrying out those duties, do so reluctantly and almost under duress. Given pressure upon police, resourcs at a time of national crisis it’s bordering on an abuse of office.

It’s therefore time that the post holder did one role or the other but not both. Let the Government legal Directorate provide advise to Ministers and Cabinet and let the Lord Advocate act independently as head of the prosecution service.

It looks as if it’s the end of an auld sang, Lord Advocate no more or at least not in a dual capacity and perhaps even not Mr Wolffe QC.