Farewell, Lord Advocate?

Sunday National, 20th December 2020.

That number. 1,264. The latest drugs death statistics had a dreadful inevitability to them, even before official confirmation of the number of fatalities in Scotland were published this week. That data showed a further 6% increase on last year’s deadly tally, confirming that Scotland now has the highest recorded drug death rate in Europe, racing dramatically ahead not only of England and Wales per capita, but all of our neighbours.

In the early 2000s, there were around 360 drug-related deaths in Scotland each year. From 2013 onwards, the trajectory has only been up, and up, and up, at pace, at speed. The number of fatalities has more than doubled in just seven years. While heroin and other opiates remain principally implicated, since 2015 benzodiazepines are also increasingly involved, often in combination with other substances.

The political response to the figures has been dramatic. This week, Joe FitzPatrick was relieved of his public health portfolio and Angela Constance nominated as the new Minister for Drugs policy reporting directly to the First Minister. It’s a start. But after the next Holyrood election, Nicola Sturgeon is going to have to decide whether the Crown Office also needs new leadership.

The Lord Advocate used to be a much more explicitly political position. During successive Tory and Labour governments in Westminster, the responsibilities of the ­office were bestowed on politically-congenial Scots lawyers with party connections.

Indeed, the key law officers in the rest of the UK remain party-political characters. The Attorney General in the Westminster government is actually a Tory MP – Suella Braverman, as were her three predecessors. The outgoing Advocate General for Scotland in Boris Johnson’s administration – Baron Keen of Elie, owner of one small castle and one minor firearms conviction – was an unabashedly partisan lawyer, combining his legal practice in Edinburgh with the chairmanship of the Scottish Tories ­before taking ermine and the Advocate General’s gig from David Cameron.

In office, Keen combined appearances in the UK Supreme Court with party political speeches in the House of Lords. His predecessor in the coalition was former Lib Dem MP and MSP Jim Wallace. New Labour governments tended to favour politically-sympatico life peers with appropriate legal qualifications. The critical point is this. The idea the Lord Advocate should be an apolitical functionary is a relatively new one in our political system. It is an experiment which should be brought to an end.

The Lord Advocate has two key jobs. They head up Scotland’s independent prosecution service, and they are the government’s chief legal adviser. The fusion of these two functions is not unproblematic. Is it right, the argument goes, that the supposedly-independent head of the prosecution service should be sitting in political cabinet meetings? If we want prosecution decisions to be made without fear or favour of government – or even the appearance of independence and impartiality being impaired – how can one person hold these two responsibilities ?

In England and Wales, the Director of Public Prosecutions heads up the Crown Prosecution Service, while the Attorney General is the government’s chief legal ­advisor – largely answering the tension. In Scotland by contrast, the Lord ­Advocate continues to wear both hats.

In 2007, the new SNP government took a decision which has indirectly led us to the current impasse over the ­public interest, drug injecting facilities and the ­Misuse of Drugs Act. Having nudged ­Labour out of office, Alex Salmond took the unprecedented decision to exclude the Lord Advocate from the Scottish cabinet. Why? He argued he wanted to “depoliticise” the position, addressing any perception of political influence on the Crown Office.

Cementing the bureaucraticisation and professionalisation of the office, Salmond took the unprecedented step of retaining Elish Angiolini – a career prosecutor and Jack McConnell nominee in the position despite the change of governments. Angiolini was replaced, in turn, by another career procurator fiscal when she left ­office. While this opening gambit may have seemed superficially canny – it was a mistake.

As the first SNP administration wore on, Salmond’s headline-grabbing commitment began quietly to give way to executive experience. Law officers began to pop up at cabinet meetings with greater and greater regularity. The bricks began to fall out of the Chinese wall between the ­Scottish Government and its chief legal advisers – and for very good reasons.

It turns out, in a complex devolution system, that it is a powerfully useful thing to have a lawyer in the room to help you navigate your policy through the reefs and shoals of the devolution settlement.

Facing a fight with the Scottish Whisky Association over minimum alcohol pricing? You need an advocate. Trying to work out how to navigate an independence referendum through the limits of the Scotland Act? You need advice, and not just about the criminal law.

And all the better if they’re ideological fellow-travellers, sharing your ambitions. A creative lawyer can turn a proposal doomed to fall outside Holyrood’s powers into a Bill which stands a stronger chance of withstanding judicial scrutiny.

A Lord Advocate who shares your ethos and political outlook is also more likely to shape prosecution policy accordingly. Although this shift was criticised by some opposition parties – it represented a welcome recognition that the initial commitment to an apolitical Lord Advocate was a misstep by a new government with no experience of ministerial office and insufficient regard for the importance of politically-informed legal advice.

There’s no sin in having law officers which share the broad ideological commitments of the politicians who appoint them. But an apolitical functionary? A lawyer appointed for their technical talents? That’s a different story. You can’t expect a functionary to suddenly come over all political. You can’t recast a technocrat as a legal radical.

As drugs deaths accumulate and drugs policy creaks, the Lord Advocate now finds himself under unprecedented, cross-party political pressure. The incumbent – James Wolffe – is a seasoned lawyer of long experience, having served as the Dean of the Faculty of Advocates before becoming Lord Advocate in 2016.

And he has done the job he was appointed to, bringing precisely the qualities that his background promised – great knowledge of the law, public law experience, and by all reputes a personal decency.

But nothing in his career suggests Wolffe is any kind of a political animal. To my knowledge, he has never expressed a party preference in public, commented on politics, or aligned himself with any particular ideology or cause. A trawl of the public record suggests that during the 2014 referendum campaign, he kept his constitutional preferences to himself. I’ve no idea whether whether his private politics tacks left or right .

While this kind of inscrutability may be a good fit for a civil servant – these aren’t necessarily virtues as we enter a new phase of constitutional tumult, with the legal framework of devolution being tested in unprecedented ways, both in London and Edinburgh, when the limits of the law itself becomes the terrain of political conflict.

Wolffe is a careful lawyer, but no orator. He’s legally bright but no media operator. If you wanted a radical law officer, inclined to work right to the edges of devolved competence in a politically-exposed and controversial way – James Wolffe is the last person in the world you’d appoint to the post.

The last word on the prosecution of individual cases must be made by independent prosecutors rather than political pressure, but that doesn’t mean the government has no legitimate interest in picking the right person for the post.

You can’t blame James Wolffe for being everything he promised to be. But if we want a different kind of prosecutor in charge, then we can’t afford to keep him in post. I write this with no personal animus and not a little regret. But times change, and governments must change with the times. If Nicola Sturgeon wants a change of nerve at the top of the Crown Office after the next election too, she’ll need a new Lord Advocate.

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