There is political confusion over Lord Advocate’s role

Sunday National, 20th June 2021.

Demanding six impossible things before breakfast is standard operating procedure for our politicians – but this week, the sense of confusion has been particularly intense. QCs Dorothy Bain and Ruth Charteris have been nominated to serve as the new Lord Advocate and Solicitor General for Scotland. They will be responsible not only for the leadership of the Crown Office and Procurator Fiscal Service, but will also act as the Scottish Government’s chief legal advisers.

These appointments have been met with a wave of demands to divide these two functions, combined with calls for the new chief public prosecutor to find a political spine, follow the political consensus, and effectively ignore Westminster’s Misuse of Drugs Act. It is a bold argument from Scotland’s opposition parties – but an obviously incoherent one. Do you want a political Lord Advocate, or an unpolitical one? Choose.

This confusion was encapsulated by Willie Rennie this week, who called on Dorothy Bain to “cease prosecution and imprisonment” for low-level drug offences, while in the same breath demanding reform to make the Lord Advocate just another civil servant, quite untainted by connection to politicians, the government of the day, or their broad political ambitions for how the criminal justice system should operate. 

“It is worth remembering,” said Rennie “the Lord Advocate is appointed by and acts within the policy framework of the Scottish Government, so ministers cannot shrug their shoulders, as they, too, bear a heavy responsibility for the lack of reform in the Crown Office.”

Alex Cole-Hamilton picked up where his leader left off, demanding in the same breath that the Lord Advocate should be evicted from the world of political affairs, while calling on her to heed the majority vote in the Scottish Parliament – essentially – to introduce de facto decriminalisation of drugs possession, whatever the letter of the law might say about possessing and distributing controlled substances.

So which is it to be? If you want the Lord Advocate to be another technical, apolitical functionary applying the law of the land, you can’t reasonably expect them to be a political radical on drugs law and policy. If you want a radical Lord Advocate, you can’t reasonably ask a rule of law bureaucrat to shoulder the political work. The Liberal Democrats seem to want a chief public prosecutor who is more and less political all at once – and extraordinarily, don’t seem to perceive the tension between these two aspirations.

Their confusion is emblematic of wider tensions around the role. The case for dividing the Lord Advocate’s advisory and prosecuting functions seems to me a persuasive one. It is a historical anomaly. In classic legal terms, the combined functions do not contribute to an objective appearance of independence and impartiality. But is the leadership of a major institution like the Crown Office something which should be meekly surrendered to the world of officialdom and technocracy? I have my doubts too.

Just as there’s nothing more divisive than a call for unity, in my experience, you should be suspicious of politicians calling for anything to be “depoliticised.” Often as not, demands by politicians for other politicians to “keep the politics out of it” are just a neat way of scolding anyone with the temerity to disagree with you, while giving effect to their own preferences under the guise of sweet reason and common sense.

Part of the problem here is the impoverished way we often understand what counts as “political” – as if it is just a synonym for being “party political” and anything not done under a party badge is somehow not susceptible to legitimate political analysis. Not so. Agenda-setting is a political activity. How resources are allocated in a public agency is a political decision. Prioritising some issues over others is a political choice. How you run or reform a substantial national institution like the Crown Office and Procurator Fiscal Service is not – and has never been – a politics free zone. The mistake was ever imagining it could or should be.

Attempting to set up the Lord Advocate as a wholly apolitical figure was a mistake when Alex Salmond first announced his intention to do so in 2007, and it is a mistake now. How do we know it was a mistake? Because behind the rhetoric about isolating the law officers from “the political process” after 2007, as the SNP got more used to governing, and became more and more aware of the fact that having a legal voice in the cabinet room is increasingly necessary to make fully-informed political choices, the Lord Advocate was quietly readmitted to the cabinet room, a bundle of legal expertise under either arm.

Figures first unearthed by the Sunday Herald in 2013 showed that Lord Advocate Frank Mulholland actually attended around 50% of cabinet meetings during Salmond’s second stint as First Minister. This wasn’t an improper development. It just demonstrates the initial determination to do without law officers was mistaken.

There was also a cynical side to this supposed “depoliticisation” of the role. When the Offensive Behaviour at Football Bill blew up, the SNP leadership sent for Frank Mulholland to allay anxieties on their own backbenches and persuade MSPs this muddled bit of legislation should pass. Giving evidence to the Justice Committee, Mulholland used his supposedly “apolitical” character as a career prosecutor to make the case for this extremely political bit of law reform. This should be a salutary reminder that being allegedly “apolitical” can be politically useful too.

The SNP has historically undervalued their law officers’ advisory role. Dividing the Lord Advocate’s duties might help in this respect, making clearer the legitimate space for a Scottish style attorney general, serving the government as a legally-informed fellow traveller.

Another sound argument for reform that it is often challenging to find one person who is a good fit for both aspects of the current job. Adam Smith’s specialisation theory is as true of lawyers as everyone else: there tends to be a division of labour in the profession. There aren’t many advocates out there who are a dab hand both at constitutional litigation and with criminal cases. This is why the role has tended to swing in recent years from institutionalised Crown Office lifers like Mulholland – to advocates like James Wolffe who was very much the lawyer’s lawyer, but hardly a man for jury speeches. Dorothy Bain’s career suggests she will be the first Lord Advocate for some time, comfortable with both aspects of the job. Both wigs fit.

This is important because law is increasingly important in shaping how Scotland is governed. It isn’t just the legality of an independence referendum which is contested. Devolution is legally complex – sometimes fiendishly so. Again and again, we’ve seen Holyrood’s measures running into legal challenges.

Think of the UK government’s decisions to refer Holyrood Bills to the Supreme Court for scrutiny. Think of the Named Persons provisions, challenged by the Christian Institution. Think of minimum alcohol pricing, which the Scotch Whisky Association tried to block. The fact these legal challenges arise isn’t because ministers are getting duff legal advice. It is because the Scottish Parliament is subject to legal restraints which Westminster legislation simply ignores. Holyrood isn’t sovereign – and the profusion of litigation around it is just one expression of this fact.

To meet these challenges, the Scottish Government needs all the legal resources at its disposal. As the First Minister recognised in Holyrood this week, the case for splitting the functions of the Lord Advocate is a prima face persuasive one.  But legally, reform isn’t so easy. Under the Scotland Act, any Bill which “would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland” is currently outside Holyrood’s legislative competence. But the problems need not be insuperable. Thoughtfully done, reform should bolster public confidence, bring clarity, and contribute to the better government of the nation.

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