Scottish Affairs Committee
Wednesday 4th November 2026
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09:39
Patricia Ferguson
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Patricia Ferguson
And welcome to this meeting of the Scottish Affairs Committee. Today we will be taking oral evidence for the first time as part of our inquiry into the dual role of Scotland's Lord advocate. Before we begin, I'd like to briefly set out the committee's approach to this inquiry. The committee has a very narrow terms of reference, and we focus specifically on appraising the case for and against splitting the dual role and exploring different options for reform. The inquiry, therefore, will not touch on many of the wider issues associated with the recent work of the Lord advocate and the Crown Office and Procurator Fiscal Service.
In particular, we will not discuss individual charging decisions. These are properly a matter for the Crown Office to undertake independently. There are also a number of on going legal matters which are off limits and in some cases may be subjudice. I will maintain order in line with the committee's agreed terms of reference this morning and in any future sessions considering this matter, and I will also put on record not just for the benefit of today's witnesses, but also for future witnesses and members of the public. Following our work, that that is the case. So could I.
Now, having got the formalities out of the way, welcome our witnesses and ask them to introduce themselves and their role. I'll start with you, doctor to Kelly.
In particular, we will not discuss individual charging decisions. These are properly a matter for the Crown Office to undertake independently. There are also a number of on going legal matters which are off limits and in some cases may be subjudice. I will maintain order in line with the committee's agreed terms of reference this morning and in any future sessions considering this matter, and I will also put on record not just for the benefit of today's witnesses, but also for future witnesses and members of the public. Following our work, that that is the case. So could I.
Now, having got the formalities out of the way, welcome our witnesses and ask them to introduce themselves and their role. I'll start with you, doctor to Kelly.
09:41
09:41
09:41
Patricia Ferguson
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Patricia Ferguson
Thank you both. We as a committee are familiar with the reasons and the historic nature of the role of the Lord advocate and why it is a dual role at the moment. I don't really want to go into the historical origins of that arrangement, but can I ask you if there were any discussions around the time of devolution about whether the dual role should be retained or whether it should be considered in a different way?
09:42
Speaker 1
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Speaker 1
I don't actually know the answer to that question. Not a good start in terms. I think I think goodbye. Yes. Well, it's certainly what's what's noteworthy if you look at the Scotland Act and what became of the kind of foundational documents of devolution, it notably didn't attempt to codify really what the roles of the Lord advocate are above and beyond saying the roles private prosecutors kind of carved out and protected. So it was clearly felt that this historic office, perhaps given how many different responsibilities some of them quite eccentric, have accrued in that kind of great office of state over the years that it was felt, we just fold this office into this new devolution framework and really focus on changing the big change around creating a Scottish Parliament, rather than trying to revisit, at the same time the responsibilities and roles of an ancient law officer of the state who does many, many different things.
09:42
09:43
Speaker 2
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Speaker 2
On my memory? I've read through the reports of the time, and there were certainly debates centered more around the way in which the Lord Advocate's responsibilities should be divided, as between the UK government going forward and the devolved devolved institutions. And in that context, there was quite a heated debate and a vote, I think, around whether the Solicitor General should be devolved version of the main law officer and the Lord advocate be retained as the UK government's primary legal adviser, and all the consequences which would flow from that. So not not not much attention from my memory of it around the dual role as it's understood here, as between the independence, the prosecutorial role and the legal advisory role.
But I do also remember reading some archival papers relating more to the Advocate General for Scotland, where there certainly was consideration given to whether or not that role should be held by just an official non politically active. And that was roundly dismissed by the government of the day. But I can't remember either any specific breach of. Okay.
But I do also remember reading some archival papers relating more to the Advocate General for Scotland, where there certainly was consideration given to whether or not that role should be held by just an official non politically active. And that was roundly dismissed by the government of the day. But I can't remember either any specific breach of. Okay.
09:44
John Cooper
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John Cooper
Thank you chair. We are where we are with the Scotland Act. And as we know, it's a it's a fine piece of machinery. It's a beautiful Swiss watch of a thing. But as time has gone on, has it this dual role, has it proven to be helpful? Are there advantages to it? Is there a case to be made for keeping it? I mean, obviously the headline, if you like, is the idea that we should get rid of this, but actually, are there some advantages to it, do you think? Doctor to start with you.
09:44
Speaker 1
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Speaker 1
Yeah. Well, as you know I'm in favour of splitting the role. So I see the disadvantages as tending to outweigh the advantages. It certainly brings into the heart of the Scottish Government an officer of the law who is concerned about guiding ministers on what the rule of law is. Previous Lords advocates such as Elish Angiolini have highlighted the importance, as head of the Prosecution Service, of being able to make the arguments in cabinet in government for resourcing, for example. So we know that decisions of the Scottish Parliament around what you can criminalise, what offences should be looked at more carefully will often have resource implications in terms of the number of cases being indicted in the High Court, for example.
So previous Lords advocate have said that that was helpful, being able to be in the room, not just as an official, but to be part of, effectively, the government. It enabled them to make the case directly to the First Minister, to the Cabinet Secretary for finance. We need those resources. So I think that seems to have been the key benefit that previous incumbents have identified.
So previous Lords advocate have said that that was helpful, being able to be in the room, not just as an official, but to be part of, effectively, the government. It enabled them to make the case directly to the First Minister, to the Cabinet Secretary for finance. We need those resources. So I think that seems to have been the key benefit that previous incumbents have identified.
09:45
09:47
Speaker 2
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Speaker 2
I suppose I'm thinking specifically of the idea that if somebody is, is known to have to make prosecutorial decisions independently, that will naturally reinforce the independence with which they're viewed when giving legal advice, and vice versa. And I think the same is true in other contexts. So if you're a councillor or council level and you have to decide planning applications or whatever, or licensing decisions, you have to decide that impartially. And that shouldn't necessarily lead to doubt being cast in your ability to represent your party's interests in other capacities. So I think the two roles issue can be viewed either way.
I think it's important to think about it from a potentially positive perspective, because that's your question. But it can actually be viewed in other ways too.
I think it's important to think about it from a potentially positive perspective, because that's your question. But it can actually be viewed in other ways too.
09:48
09:48
09:48
Speaker 1
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Speaker 1
Yeah, absolutely. I mean, I think in terms of recent debates around this role in Scotland, I think that the question about perceptions of bias is absolutely critical here. Is it compatible for the same person to be the government's chief legal advisor and to be the chief prosecutor in the country? I think that goes to the nub of what the question is here. And without suggesting any impropriety, we can take that general formulation of public law from Porter against McGill of. Would a reasonable person looking at this conceive that there was a real possibility of bias?
And I think the answer empirically is yes, because we're sitting here talking about it and have been for some time. I mean, this isn't a novel controversy in terms of the roles of the Lord advocate. There has been ongoing controversies, as we were discussing earlier, outside about law officers roles, where they're partly in government, partly outside of it. And there are inherent tensions in any system that we adopt. But for me, I think in terms of public confidence in the process, there are clear challenges about saying the Lord advocate is sitting around the cabinet table with the Scottish ministers, and quite separately, is taking decisions on whether or not individuals should be prosecuted.
And I think that cannot be addressed except by removing one of the roles from the Lord advocate, which I would suggest would be the legal advisory role in terms of ministers.
And I think the answer empirically is yes, because we're sitting here talking about it and have been for some time. I mean, this isn't a novel controversy in terms of the roles of the Lord advocate. There has been ongoing controversies, as we were discussing earlier, outside about law officers roles, where they're partly in government, partly outside of it. And there are inherent tensions in any system that we adopt. But for me, I think in terms of public confidence in the process, there are clear challenges about saying the Lord advocate is sitting around the cabinet table with the Scottish ministers, and quite separately, is taking decisions on whether or not individuals should be prosecuted.
And I think that cannot be addressed except by removing one of the roles from the Lord advocate, which I would suggest would be the legal advisory role in terms of ministers.
09:49
Speaker 2
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Speaker 2
Yes. I suppose the second disadvantage which is commonly referred to as is workload. The idea that there are now such a significant number of prosecutorial functions to be to be discharged even within that side of the office, and that's to be discharged alongside the very complex understanding of constitutional law in any other form of legal advice that might be requested in the advisory role. And so I've heard that mentioned quite frequently. I'm not myself persuaded by it because I, I think that you're talking about effectively a ministerial, top of the pyramid figure who can be asked to give advice when required.
There's there's over 80 advocate disputes in the prosecution side. There are many professional legal advisers on the other side of the House, and it's the most complex, difficult questions which ultimately reached the law. Officers workload doesn't really. Persuade me and nor really just the perception problem, because I think the same disadvantage can be levelled at anybody wearing two hats.
There's there's over 80 advocate disputes in the prosecution side. There are many professional legal advisers on the other side of the House, and it's the most complex, difficult questions which ultimately reached the law. Officers workload doesn't really. Persuade me and nor really just the perception problem, because I think the same disadvantage can be levelled at anybody wearing two hats.
09:51
09:51
Speaker 1
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Speaker 1
I think we need to distinguish between roles and membership of the Scottish Ministers, because I think they're not quite the same thing. And that might seem like a fairly wafer thin distinction, but I'm not sure that it is. I think the perception challenge facing the office at the moment is about roles, not necessarily about being ex officio, a member of the Scottish Ministers. And I would argue, in fact, that we should keep that approach. If we did reform this particular office, it would make sense for the Lord advocate focus primarily on their criminal functions to retain that accountability to Parliament and being participating in part of the wider Scottish Ministers.
So I think for me it's a question of roles. Are the roles compatible? Whereas in a sense, whether or not they're a member of the Scottish Ministers is is a distinct question, I would say.
So I think for me it's a question of roles. Are the roles compatible? Whereas in a sense, whether or not they're a member of the Scottish Ministers is is a distinct question, I would say.
09:51
Douglas McAllister
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Douglas McAllister
Can I ask a supplementary on that? Thank you chair. Do you think the example of the consideration by the Scottish Government in relation to the safer drug consumption rooms, maybe helps demonstrate why there is the need for that dual role of Lord advocate, both as the chief legal adviser in relation to drug policy, but then also as the chief prosecutor. She has to take the decision in relation to relaxing whether or not someone is prosecuted around that zone for possession of drugs. Do you think that helps the public understand that there is not bias there, but perhaps an enabler in relation to government policy?
09:52
Speaker 1
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Speaker 1
Yeah, I think that's absolutely right. And I think this really gets overlooked as one of the reasons why I highlighted it in my written submission that the Lord advocate at the moment on any previous Lord advocate takes politically significant decisions. Now, if you ask the Lord advocate whether they were being political, they might say no, because these are people who don't see themselves as politicians. They see themselves as primarily lawyers. So let's use the softer language of policy. Is it a major policy decision to say it's not in the public interest to prosecute people in safer drug consumption room?
Absolutely it is. Is it a major policy decision for the Lord advocate systematically to start appealing against effectively lenient sentences in rape cases? Absolutely it is. And in terms of the political fray, for example, we have seen Lords, Lord advocates coming into Parliament to advocate for particular legislation. Frank Mulholland, for example, when he was Lord advocate, strongly supported the offensive behaviour at football legislation which has since been repealed. Dorothy Bain went into parliament more recently to talk about her support for the victims Bill, which was passed Parliament in 2025. Now, I'm not saying that's inappropriate.
In fact, I'm saying the opposite, that these are political interventions, policy interventions, and therefore, it's one of the reasons why I think we should see the Lord advocate not as a party political person necessarily, but as an inherently political role, which quite appropriately has political accountability mechanisms associated with it.
Absolutely it is. Is it a major policy decision for the Lord advocate systematically to start appealing against effectively lenient sentences in rape cases? Absolutely it is. And in terms of the political fray, for example, we have seen Lords, Lord advocates coming into Parliament to advocate for particular legislation. Frank Mulholland, for example, when he was Lord advocate, strongly supported the offensive behaviour at football legislation which has since been repealed. Dorothy Bain went into parliament more recently to talk about her support for the victims Bill, which was passed Parliament in 2025. Now, I'm not saying that's inappropriate.
In fact, I'm saying the opposite, that these are political interventions, policy interventions, and therefore, it's one of the reasons why I think we should see the Lord advocate not as a party political person necessarily, but as an inherently political role, which quite appropriately has political accountability mechanisms associated with it.
09:54
09:54
Dave Doogan
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Dave Doogan
Thank you, chair Doctor Tickle. We shouldn't see the Lord advocate primarily as a political person. We shouldn't. Isn't it the case that we shouldn't see. Because you make an interesting distinction between politics and policy, one of which is much more legitimate than the other. For the Lord advocate, I would argue, shouldn't we see the Lord advocate as emphatically not a political person? They are in cabinet and and they're a minister, but they're not politicians. And is it is it is it part of this housekeeping review, if you want to call it that, that there may actually be advantages to having that distinct ministerial capacity as a non-politician within cabinet in terms of advice?
Leaving aside the chief prosecutor, but in terms of legal advice, is that inherently advantageous or neutral or disadvantageous, and how important is it to be very clear that no matter who the Lord advocate happens to be at the time, they are not, they are about as far away from a politician really, actually, as it's possible to be with, with the exception of being in government.
Leaving aside the chief prosecutor, but in terms of legal advice, is that inherently advantageous or neutral or disadvantageous, and how important is it to be very clear that no matter who the Lord advocate happens to be at the time, they are not, they are about as far away from a politician really, actually, as it's possible to be with, with the exception of being in government.
09:55
Speaker 1
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Speaker 1
Well, historically that's not true, as we know. So, for example, going back to the history of the early phases of devolution, Lord Hardy as Lord advocate played a significant role in steering the Scotland Act through in 1998. And admittedly, in recent times, the appointments have tended to be not obviously partisan or political party members of one kind or the other. I think it maybe depends on your approach to the word politics. I have a fairly robust approach to what counts politics, and I think taking decisions of the kind I outlined a moment ago are political, even if they're not coming from an entrenched party political point of view.
And I think that's one of the inherent tensions in this whole debate that very often people are relying on rather stark, and I think, not particularly persuasive distinctions between, effectively officials who are political eunuchs at one stand and then the other. We've got all of these terrible politicians being political over here. And in fact, it's more nuanced than that as far as I'm concerned. Equally, under the Scotland Act, you could be a politician. I mean, if John Swinney had thought that one of his colleagues was an excellent fit to be solicitor general or Lord advocate, there is nothing prohibiting them being appointed to that role at this stage, except perhaps for public opinion and public reactions and so forth in terms of that.
So I do think we need to unpick that idea of what counts as political. I'm not suggesting the Lord advocates are the same as a cabinet secretary advocating for a bill. Clearly they're not, because they're law officers, and law officers are creatures of the law and creatures adjacent to politics and have to be loyal to both. I would say one just final thought on that. I'm always very struck by something I heard many years ago from Dominic Grieve, who was a former attorney general, and he was giving a lecture that I attended, and he made the point that when he was sitting around the cabinet table talking to his colleagues about a policy which the government of the day wished to adopt, he thought it was terrifically useful for the Attorney General to be able to say, I am a fellow traveller, I am a conservative MP.
I'm not against you. This isn't for legal reasons, as a way of stymieing and blocking a policy. I'm on your side and I can help you solve problems. So I think again, when we think about that other dimension of the law officer's role, that's something which we don't currently have in Scotland, because we have these slightly more apolitical Lord advocates, and it could be useful for the government of the day to have a more political one. As as some of the evidence before the inquiry has highlighted.
And I think that's one of the inherent tensions in this whole debate that very often people are relying on rather stark, and I think, not particularly persuasive distinctions between, effectively officials who are political eunuchs at one stand and then the other. We've got all of these terrible politicians being political over here. And in fact, it's more nuanced than that as far as I'm concerned. Equally, under the Scotland Act, you could be a politician. I mean, if John Swinney had thought that one of his colleagues was an excellent fit to be solicitor general or Lord advocate, there is nothing prohibiting them being appointed to that role at this stage, except perhaps for public opinion and public reactions and so forth in terms of that.
So I do think we need to unpick that idea of what counts as political. I'm not suggesting the Lord advocates are the same as a cabinet secretary advocating for a bill. Clearly they're not, because they're law officers, and law officers are creatures of the law and creatures adjacent to politics and have to be loyal to both. I would say one just final thought on that. I'm always very struck by something I heard many years ago from Dominic Grieve, who was a former attorney general, and he was giving a lecture that I attended, and he made the point that when he was sitting around the cabinet table talking to his colleagues about a policy which the government of the day wished to adopt, he thought it was terrifically useful for the Attorney General to be able to say, I am a fellow traveller, I am a conservative MP.
I'm not against you. This isn't for legal reasons, as a way of stymieing and blocking a policy. I'm on your side and I can help you solve problems. So I think again, when we think about that other dimension of the law officer's role, that's something which we don't currently have in Scotland, because we have these slightly more apolitical Lord advocates, and it could be useful for the government of the day to have a more political one. As as some of the evidence before the inquiry has highlighted.
09:57
09:57
Speaker 2
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Speaker 2
May I. doctor McConnell, make another related point, which is that another way of framing that would be to talk about neutrality, which is the way you see the seam to be conducted when you're talking about lawyers and outside of politics. And this is an age old law officer debate that I associate mostly with a great article by Neil Walker, a famous Scottish professor, in that basically he makes the point that whether you're talking about the the Lord advocate in their capacity or any law officer in their capacity as prosecutorial officer, or you're talking about them in their capacity as legal adviser, you run into the same debate, you know, to what extent are they some totally impartial, neutral applicator automaton?
To what extent can they advance the client's interests? And in fact, lawyers can be criticised just as strongly for advancing their client's interests too much. But that's not a legitimate criticism of a lawyer, no more than it is a legitimate criticism of a politician. So I think it's helpful to bear that in mind, because ultimately what I what I see happening all the time in debates as regards many law officers, is people getting lost in that debate or losing sight. I beg your pardon of that debate, because here we have a discussion to split those two roles.
But you would still be retaining the same tension in both versions. You would still have the people who want to have somebody who's really neutral and isn't so interested in advancing the client's interests in the way that Dominic Grieve was discussing. And then the other, who is all for advancing the client's interests to the maximum extent, the client in this case being the government.
To what extent can they advance the client's interests? And in fact, lawyers can be criticised just as strongly for advancing their client's interests too much. But that's not a legitimate criticism of a lawyer, no more than it is a legitimate criticism of a politician. So I think it's helpful to bear that in mind, because ultimately what I what I see happening all the time in debates as regards many law officers, is people getting lost in that debate or losing sight. I beg your pardon of that debate, because here we have a discussion to split those two roles.
But you would still be retaining the same tension in both versions. You would still have the people who want to have somebody who's really neutral and isn't so interested in advancing the client's interests in the way that Dominic Grieve was discussing. And then the other, who is all for advancing the client's interests to the maximum extent, the client in this case being the government.
09:59
Patricia Ferguson
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Patricia Ferguson
So therefore, does it come down to finding what is the system that avoids as much as is possible? I take your point about lawyers always have that kind of dilemma, but about avoiding that perception, doing whatever it is that needs to be done to make it clear what those roles actually are and how they're separated. And I don't want to prejudge the committee's decisions, and I certainly haven't come to a conclusion personally. But maybe that is one of the arguments for splitting the roles so that you can have that avoidance of a perception. I mean, it may not work, but what I'm trying to say is, are we are we really trying to address a problem of perception rather than actuality?
10:00
Speaker 2
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Speaker 2
I feel sure that is the case, and I'm just skeptical about perception alone being enough of a justification to dismantle a centuries old office. Albeit it's certainly that's not how I view this as taking, you know, a scalpel instead of a sledgehammer to the problem. If there's particular issue to be remedied by all means to tackle them. But I just cannot imagine separating those prosecutorial role from the legal advisory role would necessarily prevent these debates from unfolding. And because they'll just be reframed as against the purely legal adviser person, you know, you're being too partisan, you're being too much.
You're interpreting the law too favourably towards your client in a way that the courts might not, or vice versa. And so that's where safeguards become all important, of course. And we could talk about those, because I've always thought that the Scottish model was the best of those in operation in the UK, because of the clarity with which the two roles are distinguished and certain functions are statutorily protected and must be discharged independently, others don't have to be. That's all quite clearly set out. And if anybody thinks five of those safeguards can be judicially reviewed, among other things.
You're interpreting the law too favourably towards your client in a way that the courts might not, or vice versa. And so that's where safeguards become all important, of course. And we could talk about those, because I've always thought that the Scottish model was the best of those in operation in the UK, because of the clarity with which the two roles are distinguished and certain functions are statutorily protected and must be discharged independently, others don't have to be. That's all quite clearly set out. And if anybody thinks five of those safeguards can be judicially reviewed, among other things.
10:01
10:01
Speaker 1
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Speaker 1
So I suppose the starting point for this is the Scotland Act, which sets out specific provisions which protect the Lord Advocate's reserved functions, which are effectively those functions which she exercises independently of any other person, and that principle that any decision making on prosecutions is independent of any other person is entrenched in the Scotland Act. So MSPs could not pass legislation to change that provision as things stand. So that's a strong statutory guarantee that the Lord advocate effectively is not subject to the general principles of collective government responsibility when it comes to decision making on prosecutions and in particular.
So I think that's an important statutory safeguard. And of course, the Crown Office itself has a range of internal processes where it tries to deal with some of the trickier types of cases where you have, for example, questions of conflict of interest, prior connections with cases and so forth. And I think those are not on a statutory basis. I guess they could be, as the Law Society of Scotland suggests, you could have a more robust framework in a statutory sense for what should the Lord advocate do if she is effectively compromised out of a case more prominently, perhaps, than the political examples we've looked at recently are cases where Lords advocate have been involved in previous representation of clients in a case which are much, much more common than cases involving prosecutions.
We have some recent examples, such as the malicious prosecutions cases involving Rangers Football Club. That was a case where the Lord advocate decided she couldn't be involved. Similarly, we had the Sheku Bayoh inquiry, which is currently ongoing, into his death in police custody and again because of her prior connections to that controversy, Dorothy Bain decided she couldn't be involved in that process. So there's this basic statutory framework. But then there are other internal sort of safeguards and processes which the Crown Office has put in place.
So I think that's an important statutory safeguard. And of course, the Crown Office itself has a range of internal processes where it tries to deal with some of the trickier types of cases where you have, for example, questions of conflict of interest, prior connections with cases and so forth. And I think those are not on a statutory basis. I guess they could be, as the Law Society of Scotland suggests, you could have a more robust framework in a statutory sense for what should the Lord advocate do if she is effectively compromised out of a case more prominently, perhaps, than the political examples we've looked at recently are cases where Lords advocate have been involved in previous representation of clients in a case which are much, much more common than cases involving prosecutions.
We have some recent examples, such as the malicious prosecutions cases involving Rangers Football Club. That was a case where the Lord advocate decided she couldn't be involved. Similarly, we had the Sheku Bayoh inquiry, which is currently ongoing, into his death in police custody and again because of her prior connections to that controversy, Dorothy Bain decided she couldn't be involved in that process. So there's this basic statutory framework. But then there are other internal sort of safeguards and processes which the Crown Office has put in place.
10:03
Speaker 2
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Speaker 2
Yeah, there are so many. There are so many safeguards, legal and political. So the Scotland Act is, as Andrew has said or has said is the right place to start. You have the statutory protection around the functions which are reserved. So the prosecutorial functions, the investigation of death functions. But beyond that, there are also, as I'm sure you know, provisions which exempt the Lord advocate in the discharge of those functions from collective responsibility, which is reinforced by the ministerial code. Beyond that, in the discharge of all functions, you have things like the Human Rights Act, the Scotland Acts own compatibility functions.
They don't apply in every circumstance. So what does that mean in terms of a safeguard in real terms. I mean it means you can judicially review, as I just said, the Lord advocate, in the event that you suspect or have evidence to show that a decision has not been exercised with true independence, there is no such case. There are, as Andrew and Doctor Kale, I beg your pardon once more has just said, there are many cases where cases have been taken on other grounds. So not for a breach of, you know, the statutory independence provision, but for, you know, compatibility with human rights or on grounds of malicious prosecution.
And that includes prosecutorial functions. So you have the assisted dying policy guidance being judicially reviewed for its compatibility with article eight. You have a refusal to institute inquiries, fatal accident inquiries into sort of infected blood scandal victims, which the courts then required. There's accountability and a safeguard working well, you know, Lord advocate says, no, I'm not going to require that the courts look at it through the lens of human rights and say, no, you must. So there are safeguards that can be turned to in the legal sphere. And the same is true of the political sphere.
And that's the great advantage of this model to my mind. You know, in respect of the Rangers case, for instance, you could you could reflect on the level of damages awarded by the court. You could also reflect on the fact that Lord advocate attended Parliament and apologised. And and there was that political responsibility. And the two worked together. So I better stop there. But, I mean, there are substantial safeguards in place, I think.
They don't apply in every circumstance. So what does that mean in terms of a safeguard in real terms. I mean it means you can judicially review, as I just said, the Lord advocate, in the event that you suspect or have evidence to show that a decision has not been exercised with true independence, there is no such case. There are, as Andrew and Doctor Kale, I beg your pardon once more has just said, there are many cases where cases have been taken on other grounds. So not for a breach of, you know, the statutory independence provision, but for, you know, compatibility with human rights or on grounds of malicious prosecution.
And that includes prosecutorial functions. So you have the assisted dying policy guidance being judicially reviewed for its compatibility with article eight. You have a refusal to institute inquiries, fatal accident inquiries into sort of infected blood scandal victims, which the courts then required. There's accountability and a safeguard working well, you know, Lord advocate says, no, I'm not going to require that the courts look at it through the lens of human rights and say, no, you must. So there are safeguards that can be turned to in the legal sphere. And the same is true of the political sphere.
And that's the great advantage of this model to my mind. You know, in respect of the Rangers case, for instance, you could you could reflect on the level of damages awarded by the court. You could also reflect on the fact that Lord advocate attended Parliament and apologised. And and there was that political responsibility. And the two worked together. So I better stop there. But, I mean, there are substantial safeguards in place, I think.
10:06
10:06
Douglas Lumsden
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Douglas Lumsden
Yeah. Thank you chair. I just want to remind everyone that it was a MSP at the earlier on this session. Just on the whole, you mentioned, doctor, about the Lord advocate recusing herself. What would that actually mean in practice? Would that mean that she didn't take any part in the process, and would also mean that she wouldn't be kept updated on anything that's taking place during that cases?
10:06
Speaker 1
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Speaker 1
So in terms of how this actually works in practice, this has not been very publicly accessible until fairly recently. So Crown Office published in, I think, August of this year, two pieces of guidance on how they approach these kind of recusal processes. So my understanding of it is that effectively, what would happen would be the Lord advocate would devolve the decision making to crown counsel who are senior lawyer within the Crown Office, who would take all decisions independently of the law officers in cases involving a politician, or where they are personally compromised out of being involved in the case.
From developments, we know that that doesn't mean the Lord advocate doesn't know anything about these cases. So we do know from the controversial communications that she communicated to John Swinney that she had an awareness that Peter Murrell had been indicted, for example. That was a factual statement she was able to give the Lord, the Lord advocate gave the First Minister. So there was clearly some awareness on the part of law officers about what's going on. I'm not sure whether that's necessarily sinister in terms of the. After all, still have overall responsibility for their ministerial office.
From developments, we know that that doesn't mean the Lord advocate doesn't know anything about these cases. So we do know from the controversial communications that she communicated to John Swinney that she had an awareness that Peter Murrell had been indicted, for example. That was a factual statement she was able to give the Lord, the Lord advocate gave the First Minister. So there was clearly some awareness on the part of law officers about what's going on. I'm not sure whether that's necessarily sinister in terms of the. After all, still have overall responsibility for their ministerial office.
10:07
Douglas Lumsden
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Douglas Lumsden
I guess this is where the perception of wrongdoing or the ordinary man on the street thinks, oh, hold on, this doesn't seem a bit right. That the Lord advocate sits in cabinet with someone. Okay, she's not taking part in the decision making process, but she's aware of what's going on. And there could be a perception that that information has been fed to the rest of the government.
10:07
Speaker 1
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Speaker 1
Yeah, I think that's absolutely would be an understandable perception that people might have. I think for many people, when they think about the law with a capital T and a capital L, they think about criminal law and looked at in a dim light. And from a relatively under-informed perspective, you might think, well, the Lord advocate is at the same time the prosecutor who's involved in a case and your defence agent. And that isn't really what's going on in these cases. But I think people can understandably see it in that kind of a way. I mean, clearly, there has been controversy about whether Dorothy Bain was correct to share those factual updates with the First Minister on two occasions, and reference has been made to, I think, 30 other examples where the law officers over the history of devolution have shared information on cases from the Lockerbie case to the naked Rambler, which I found rather remarkable at that merited political scrutiny.
And I think the argument in defence of it is, is that it informs the government about a high profile case that they're likely to be asked about, and in this case, represented a merely factual update after the event where an indictment had already been served. So some of the evidence before the committee suggests that's entirely above board. It's merely factual updating of the government of the day, as the Lord advocate might do to the Prime Minister has done to the Prime Minister in the past, where we have had criminal cases connected with people associated with the Prime Minister.
In terms of that, equally, if this is a communications problem, and I think that is a big part of it, then it isn't satisfactory really, that we're only getting this published in 2026. These conflicts of interest aren't new, and I think the Crown Office in general, in my experience of dealing with it as sort of journalistically adjacent, is that sometimes it can feel very inscrutable in terms of its internal processes. And so I welcome publishing in 2026, in August, a clearer kind of route to decision making around this. But it does come rather late in what has been a fairly long standing tension since devolution, or indeed predating devolution, I guess.
And I think the argument in defence of it is, is that it informs the government about a high profile case that they're likely to be asked about, and in this case, represented a merely factual update after the event where an indictment had already been served. So some of the evidence before the committee suggests that's entirely above board. It's merely factual updating of the government of the day, as the Lord advocate might do to the Prime Minister has done to the Prime Minister in the past, where we have had criminal cases connected with people associated with the Prime Minister.
In terms of that, equally, if this is a communications problem, and I think that is a big part of it, then it isn't satisfactory really, that we're only getting this published in 2026. These conflicts of interest aren't new, and I think the Crown Office in general, in my experience of dealing with it as sort of journalistically adjacent, is that sometimes it can feel very inscrutable in terms of its internal processes. And so I welcome publishing in 2026, in August, a clearer kind of route to decision making around this. But it does come rather late in what has been a fairly long standing tension since devolution, or indeed predating devolution, I guess.
10:09
Douglas Lumsden
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Douglas Lumsden
10:10
10:10
10:10
Speaker 1
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Speaker 1
Yes, it's a hypothetical question. I mean, I don't know whether the Crown Office would consider that would be an appropriate thing to disclose to the First Minister, certainly in terms of what they have published in 2026, set out a framework which is clearly informed by the data protection framework. But is there a legitimate aim in making disclosure? Is it proportionate for them to disclose this information to the Scottish Ministers in the public interest, in terms of the role of the police in leading inquiries, it seems more likely than not that the Lord advocate wouldn't be aware that that was going to happen in many cases or most cases, and therefore the hypothetical might not arise.
10:10
Douglas Lumsden
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Douglas Lumsden
10:11
Speaker 1
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Speaker 1
Well, it gives the Scottish Government the choice, right. I mean, they can choose to have somebody. I mean, it gives them the choice to have someone who is a fellow traveller, whether that's in terms of party politics or just general attitudes around that. I think that probably informed Alex Salmond's decision to retain Elish Angiolini as Lord advocate. There was a sense I don't know what her views are on the Constitution, but there was a sense that she was broadly in alignment with the kind of social outlook of the administration, and therefore they weren't particularly losing anything.
We haven't had an example in recent times of a politician being appointed to these roles, but I do think it raises the question about why should we prohibit it? Is there any reason to prohibit it uniquely in Holyrood to have someone who is involved or connected through through politics? And I think as well, I mean, you see it right now. I mean, in terms of litigation strategies, I suggest, you know, Lord advocate has four roles really, rather than just two. But one of them is leading the Scottish Government's approach to litigation involving Scottish ministers. And that can involve significant strategic calls.
I mean, as we sit here, for example, over in the Supreme Court, across the square there hearing argument about the amore appeal, and the attorney General will have made no doubt, significant tactical decisions about where to prioritise the case under legal advice. So I think it goes back to that question of legal advice is not simply a kind of inert, here's the law. I'm giving it to you. Go away and think about it. It's often problem solving, considering the ambiguities. The law is not two plus two equals four. It's often deals with concepts that are open to interpretation, like proportionality often deals with different and difficult choices about what arguments to run in court.
And it seems to me that it's perfectly reasonable to have an attorney general who represents what the government of the day thinks is the best approach to arguing that case in the public interest.
We haven't had an example in recent times of a politician being appointed to these roles, but I do think it raises the question about why should we prohibit it? Is there any reason to prohibit it uniquely in Holyrood to have someone who is involved or connected through through politics? And I think as well, I mean, you see it right now. I mean, in terms of litigation strategies, I suggest, you know, Lord advocate has four roles really, rather than just two. But one of them is leading the Scottish Government's approach to litigation involving Scottish ministers. And that can involve significant strategic calls.
I mean, as we sit here, for example, over in the Supreme Court, across the square there hearing argument about the amore appeal, and the attorney General will have made no doubt, significant tactical decisions about where to prioritise the case under legal advice. So I think it goes back to that question of legal advice is not simply a kind of inert, here's the law. I'm giving it to you. Go away and think about it. It's often problem solving, considering the ambiguities. The law is not two plus two equals four. It's often deals with concepts that are open to interpretation, like proportionality often deals with different and difficult choices about what arguments to run in court.
And it seems to me that it's perfectly reasonable to have an attorney general who represents what the government of the day thinks is the best approach to arguing that case in the public interest.
10:12
10:12
10:12
10:12
Speaker 1
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Speaker 1
Can't you? You can't just no, there's no prohibition on it and no expectation that they would or wouldn't be an MSP. And I guess if we are concerned about wider questions of perception, then making that someone who's not a member of the Scottish Parliament would be consistent with saying these are reserved prosecutorial functions which are connected with government, which are accountable to the Scottish Parliament, which are, in a sense, to one side of the general fray of politics.
Okay.
Okay.
10:13
Speaker 2
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Speaker 2
Briefly. So on your first question about recusal, I just think it's worth making the point that the same the same issue can arise in practically any legal context. So if you work in a set of chambers in England, for instance, you might find yourself having to recuse yourself, but working in the same building as teams who are acting against you. So the importance of setting up sort of professional firewalls is a matter of professional ethics to me, which exists in and out of government. So I just wanted to make that point briefly. And then on whether or not having a political law model is a good thing.
On top of what Doctor Jekyll has already said, I thought it might be worth reminding everyone that under the current arrangements, at least, of course, the Lord advocate is still subject to collective responsibility in the discharge of their ministerial functions. So running the offices and handling parliamentary questions, you know, upholding the government's policy when not giving legal advice. So I think that's important to bear in mind too. And having somebody who's from your same outlook obviously is important in that context sometimes.
On top of what Doctor Jekyll has already said, I thought it might be worth reminding everyone that under the current arrangements, at least, of course, the Lord advocate is still subject to collective responsibility in the discharge of their ministerial functions. So running the offices and handling parliamentary questions, you know, upholding the government's policy when not giving legal advice. So I think that's important to bear in mind too. And having somebody who's from your same outlook obviously is important in that context sometimes.
10:14
10:15
Speaker 2
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Speaker 2
Yes, I suppose that's right. That's right. And it's about the nature of the communication at the end of the day. And if it's just purely informational, no performative signals, no instructions, it's the same kind of communication that anybody, any member of the public would be entitled to have, I suppose, if they made the right inquiries and had the knowledge to know which questions to ask.
10:15
10:15
10:15
10:15
10:16
Dave Doogan
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Dave Doogan
Lord advocates to various First Ministers over the years. There's no suggestion that that's inappropriate that that that that that the disclosure was a was appropriate and was in the furtherance of some legitimate interest, whether public or otherwise. And so insofar as there is a concern about the dual role and the ability of the Lord advocate to give privileged information or perhaps privileged information to a minister or First minister in the history of devolution. Is it your understanding that there has been such a controversial disclosure, or are these disclosures 30 odd of them, much of a muchness?
Actually, the routine business of being the Lord advocate?
Actually, the routine business of being the Lord advocate?
10:16
10:17
10:17
Speaker 1
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Speaker 1
I think there's probably at least two different ways why this has proven controversial here. One of which is that point that Dorothy Bain had recused herself from involvement in this case. And it goes to what Douglas Lumsden was just asking me, which is what does that mean? And some people might take that to mean she doesn't know anything about it. And therefore, and another person is entirely responsible for it. And therefore she's excusing herself from the whole process. And to some people this might seem incompatible with that. I mean, it certainly is the case that that Crown Office has made these disclosures and a range of different cases over the years, predominantly in high profile cases, which ministers are likely to be asked about.
The case we're talking about is certainly one of those in terms of it was very likely that when Peter Murrell was indicted, that the First Minister and others were likely to be asked about it. And the second rationale given by Crown Office for doing this is to remind politicians of their responsibilities under the Contempt of Court Act, and in particular, not to say anything about a case which may give rise to substantive prejudice or impediment to the course of justice and active criminal proceedings. One might hope that politicians would all retain some sense of the proprieties of that, but maybe it's incorrect to assume that politicians would necessarily know that they shouldn't be wildly speculating about.
The case we're talking about is certainly one of those in terms of it was very likely that when Peter Murrell was indicted, that the First Minister and others were likely to be asked about it. And the second rationale given by Crown Office for doing this is to remind politicians of their responsibilities under the Contempt of Court Act, and in particular, not to say anything about a case which may give rise to substantive prejudice or impediment to the course of justice and active criminal proceedings. One might hope that politicians would all retain some sense of the proprieties of that, but maybe it's incorrect to assume that politicians would necessarily know that they shouldn't be wildly speculating about.
10:18
10:18
10:18
10:18
John Cooper
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John Cooper
Thank you very much. Sorry for interrupting. It's just on that point about that reminder of the necessity to work within the contempt of court situation. And it did seem slightly odd sometimes to provide information, say, this is this case is subjudice. You mustn't say anything about it, particularly this bit here. Here's a piece of information about that case that does seem a little bit odd. Do you think that that's a problem? That's an issue?
10:18
Speaker 1
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Speaker 1
I don't think it's the most compelling justification for informing the First Minister about this. No I don't. In context. Then again, I mean, I suppose one of the core arguments about having law officers in these kinds of roles is that they are there to be the voice of law and legality in government, and to remind politicians around the table about what the law allows and what the law prohibits. So from that point of view, in taking a precautionary kind of approach, perhaps it is important to remind politicians of this. I mean, there was a previous example involving the prosecution of David Cameron's former communications director in number ten, where the Lord advocate wrote to David Cameron, then as prime minister, to remind him that he shouldn't be making reference to this case.
So it's clear that it's not unique involving this particular controversy, that adjacent controversies involving different political parties have had the same disclosures being made to senior politicians, albeit UK government politicians.
So it's clear that it's not unique involving this particular controversy, that adjacent controversies involving different political parties have had the same disclosures being made to senior politicians, albeit UK government politicians.
10:20
10:20
Speaker 1
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Speaker 1
Yes, I think very much so. I'm kind of gung ho for that one. In principle. I think it's it's the right thing to do. The Lord advocate is an ancient office, but it's an ancient office, which was sort of folded into devolution without being fully thought about all of its different dimensions. You know, the Lord advocate used to be able to appoint judges in Scotland as a kind of great officer of state, recalling 18th century Dundas type figures who are the king's chief minister in Scotland. And that wasn't identified to be problematic until the early 2000.
The Lord advocate used to be able to appoint themselves as a judge, and one indeed seems to have done so. So given what we've learned about devolution since 1998, what have we seen? We've seen increasing complexity in the devolution settlement, as I've argued, in terms of just the policy of how do we make law under devolution that has been enhanced by Brexit and the the Internal Market Act, which raises a whole other range of issues about what Holyrood can and cannot do. And these are all ultimately questions of law. I think both of these roles are important.
Chief public prosecutor is self-evidently important role chief government legal adviser is an important role. Aren't they both important enough to merit their own focused appointee? I'd say as well, when you think about the skill set that's required of a contemporary Lord advocate, what is it? They need to be a senior lawyer. They need to have experience of the constitutional and devolution framework. They need to have some experience, presumably, of prosecuting crime and to be up for leading, leading Crown Office in guiding its policy decisions. This strikes me as an extraordinary and unfair body of work to ask of a single person, and I think above and beyond that, the last two Lord advocates that we've had have been not terribly comfortable performers in the public domain.
They've clearly found the political rough and tumble speaking up in Parliament, not the easiest dimension of the job, and I don't blame them for it. I make an observation, but it does show that you need to have what media skills and parliamentary skills and a sense of government requirements. It's a huge ask of one person. And so in Scotland, one of the things whenever a vacancy comes around or is likely to come around is who on earth would want this job? So I think if we if we split the roles, actually, there are people who are at the bar above and beyond that , who might quite like being a solicitor general for Scotland, who are primarily focused on advising the government on law.
And there are other people who might quite like to step into Crown Office and say, let's shake up how we are prosecuting these cases. I think Dorothy Bain falls into that category. From what I understand, that second dimension of the role was the key reason why she accepted the appointment. So I think we're missing a trick here. It's not just about the controversy and the perceptions. I think considering how long we've gone with devolution and what we've learned so far, there are really strong arguments to split the role as a good thing in and of itself, as well as supporting stronger perceptions of independence and answering, to some extent some of these anxieties about the interactions between law and politics.
The Lord advocate used to be able to appoint themselves as a judge, and one indeed seems to have done so. So given what we've learned about devolution since 1998, what have we seen? We've seen increasing complexity in the devolution settlement, as I've argued, in terms of just the policy of how do we make law under devolution that has been enhanced by Brexit and the the Internal Market Act, which raises a whole other range of issues about what Holyrood can and cannot do. And these are all ultimately questions of law. I think both of these roles are important.
Chief public prosecutor is self-evidently important role chief government legal adviser is an important role. Aren't they both important enough to merit their own focused appointee? I'd say as well, when you think about the skill set that's required of a contemporary Lord advocate, what is it? They need to be a senior lawyer. They need to have experience of the constitutional and devolution framework. They need to have some experience, presumably, of prosecuting crime and to be up for leading, leading Crown Office in guiding its policy decisions. This strikes me as an extraordinary and unfair body of work to ask of a single person, and I think above and beyond that, the last two Lord advocates that we've had have been not terribly comfortable performers in the public domain.
They've clearly found the political rough and tumble speaking up in Parliament, not the easiest dimension of the job, and I don't blame them for it. I make an observation, but it does show that you need to have what media skills and parliamentary skills and a sense of government requirements. It's a huge ask of one person. And so in Scotland, one of the things whenever a vacancy comes around or is likely to come around is who on earth would want this job? So I think if we if we split the roles, actually, there are people who are at the bar above and beyond that , who might quite like being a solicitor general for Scotland, who are primarily focused on advising the government on law.
And there are other people who might quite like to step into Crown Office and say, let's shake up how we are prosecuting these cases. I think Dorothy Bain falls into that category. From what I understand, that second dimension of the role was the key reason why she accepted the appointment. So I think we're missing a trick here. It's not just about the controversy and the perceptions. I think considering how long we've gone with devolution and what we've learned so far, there are really strong arguments to split the role as a good thing in and of itself, as well as supporting stronger perceptions of independence and answering, to some extent some of these anxieties about the interactions between law and politics.
10:23
Speaker 2
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Speaker 2
Yes. Well, I take a different view. I may begin, I suppose, with in terms of the question. So is it a good idea to split this role? We aren't talking about breaking a KitKat. We're talking about constitutional spaghetti here. This is a really intertwined set of functions which reinforce one another in any number of ways. And when we talk about reform to that office, all those functions need to be carefully considered and how they relate to one another. And beyond the functional redistribution of work, there's a question about concept here, which if you've read any of my work, you will know I kind of express as a tension between how much independence you want and how much accountability you want.
I think if you ask anybody in the street, should the Lord advocate be more independent? They would probably say, absolutely. But if you ask the same person, should the Lord advocate be held more accountable? Definitely. The two things are, are, are pulling in opposite directions. And I'm a great believer in. Sunlight being the greatest disinfectant. And I think the fact that you have a model where you can hold the decision maker to account personally and in a parliament is a really beneficial thing. I suppose the argument from specialization or cloning, where you just have another minister doing that, but having half the work, I think is hard to sustain because most ministerial portfolios are large.
I think if you ask anybody in the street, should the Lord advocate be more independent? They would probably say, absolutely. But if you ask the same person, should the Lord advocate be held more accountable? Definitely. The two things are, are, are pulling in opposite directions. And I'm a great believer in. Sunlight being the greatest disinfectant. And I think the fact that you have a model where you can hold the decision maker to account personally and in a parliament is a really beneficial thing. I suppose the argument from specialization or cloning, where you just have another minister doing that, but having half the work, I think is hard to sustain because most ministerial portfolios are large.
10:25
10:25
Speaker 1
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Speaker 1
I guess if there are unintended, then we don't know what they are yet. I mean, certainly I know, but yes, I mean, in terms of there are one of the reasons why I think it would be a sensible thing to carve out the legal advisory role of the Solicitor General is that it's got less changes to all the different moving parts, the KitKat or spaghetti combination that you were talking about a moment ago in the sense of what's the problem in trying to focus narrowly on that? The Lord advocate and the Solicitor General for Scotland, who is effectively their deputy in all things, has a dizzying array of of areas they're responsible for.
And we know the two biggies, right? The two main ones. But we also have various forms of statutory functions that they've been given under extradition legislation, for example, or identifying who's a vexatious litigant. That's also the Lord Advocate's responsibility, as well as being on the board of the northern lighthouses, which might not strike you as one of the more obvious things connected with that role. So clearly, if you wanted to unravel all of that, that would be potentially complex. But I think if we see that the problem is that advisory and prosecutorial role, then I think that begins to diminish some of the more problematic, unintended consequences.
I mean, the Scotland Act, as I set out in my evidence, contains around about 40 sections about the Lord advocate, most of which are not essential to their identity roles and functions. We know that the Scottish Government have appointed Lord Boyd of Duncansby to do a wider review of those issues, which maybe is expected to report in the end of 2027. What I would say is it does go to an institutional question about who is best placed to decide what kind of law officer the Lord advocate should be. And the complexities alluded to, I think, do suggest that it would be more appropriate for the Scottish Parliament and the Scottish Government to lead on this particular question, as they are the ones that are going to have to live with the division of responsibilities, primarily wherever they end up.
And we know the two biggies, right? The two main ones. But we also have various forms of statutory functions that they've been given under extradition legislation, for example, or identifying who's a vexatious litigant. That's also the Lord Advocate's responsibility, as well as being on the board of the northern lighthouses, which might not strike you as one of the more obvious things connected with that role. So clearly, if you wanted to unravel all of that, that would be potentially complex. But I think if we see that the problem is that advisory and prosecutorial role, then I think that begins to diminish some of the more problematic, unintended consequences.
I mean, the Scotland Act, as I set out in my evidence, contains around about 40 sections about the Lord advocate, most of which are not essential to their identity roles and functions. We know that the Scottish Government have appointed Lord Boyd of Duncansby to do a wider review of those issues, which maybe is expected to report in the end of 2027. What I would say is it does go to an institutional question about who is best placed to decide what kind of law officer the Lord advocate should be. And the complexities alluded to, I think, do suggest that it would be more appropriate for the Scottish Parliament and the Scottish Government to lead on this particular question, as they are the ones that are going to have to live with the division of responsibilities, primarily wherever they end up.
10:26
10:27
Speaker 2
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Speaker 2
If I if I take an example, because that's all I can do. I think there's just so much at stake. If this is seriously under consideration, to go through all the functions and think about where they go under different models. An example that occurs to me relates to the prosecutorial office and because. Because it's not like England and Wales. Some of the consequences that would have to be looked at there include, for instance, the fact that in England and Wales, legislation provides for the consent of the Attorney General in respect of a whole host of criminal offences.
So before they can be prosecuted, the attorneys consent is required specifically for set number of offences. There's a list of them or it's the Director of Public Prosecutions is Crown Prosecution Services permission one or the other? It's clearly delineated. That does not exist in respect of Scotland. So for every criminal offence, it's assumed that the head of the system, Lord advocate, needs to support the prosecution. You know, to my mind, there's a big job to be done there. And the event that the Lord advocate. Is moving away from that position and somebody has to to take on that role, basically.
So before they can be prosecuted, the attorneys consent is required specifically for set number of offences. There's a list of them or it's the Director of Public Prosecutions is Crown Prosecution Services permission one or the other? It's clearly delineated. That does not exist in respect of Scotland. So for every criminal offence, it's assumed that the head of the system, Lord advocate, needs to support the prosecution. You know, to my mind, there's a big job to be done there. And the event that the Lord advocate. Is moving away from that position and somebody has to to take on that role, basically.
10:28
10:28
10:28
Douglas McAllister
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Douglas McAllister
Yes, please, chair, if we are to split the dual role, who should be responsible for appointing those two posts? Because obviously, I appreciate that the appointment at the moment can be described as non-political and that you've made reference to the fact that there has been no party political affiliation recently. But at the end of the day, as I understand it, the king appoints. But it is still the First Minister who nominates is still the First Minister of the day, and therefore that ruling political party or parties who have the majority. So would it help public perception if the roles are split?
I can understand why the First Minister of the day would want or wish to nominate the government's legal adviser, but why should the chief public prosecutor be chosen by a First Minister?
I can understand why the First Minister of the day would want or wish to nominate the government's legal adviser, but why should the chief public prosecutor be chosen by a First Minister?
10:29
Speaker 1
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Speaker 1
Well, I think partly that goes back to my answer before about the kind of policy contexts of the role. For starters, that in terms of the policy context for the role, it is, I think, a reasonable ask for the chief public prosecutor to be broadly in alignment with the view of criminal justice policy, which the government of the day, or indeed the majority in the Scottish Parliament, which is not the same thing given the proportionality of the system , supports. I think you can see the Lord Advocate's responsibility to Parliament, an ability to be dismissed by Parliament as one of the key strengths of the role.
Conor was just talking about the role of the Attorney General and its relation to the DPP in England. You know, the Attorney General answers in Parliament, as I understand it, for the DPP. So you can't hear from the horse's mouth exactly what's happened. You could maybe invite them to a committee like this and question them, but they can't stand up at the despatch box and answer your questions. So I do think that strong and Committee like this and question them, but they can't stand up at the despatch box and answer your questions. So I do think that.
strong and stronger than here, political. accountability of the .
Conor was just talking about the role of the Attorney General and its relation to the DPP in England. You know, the Attorney General answers in Parliament, as I understand it, for the DPP. So you can't hear from the horse's mouth exactly what's happened. You could maybe invite them to a committee like this and question them, but they can't stand up at the despatch box and answer your questions. So I do think that strong and Committee like this and question them, but they can't stand up at the despatch box and answer your questions. So I do think that.
strong and stronger than here, political. accountability of the .
10:30
10:30
10:30
Speaker 1
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Speaker 1
Appointments process. Why shouldn't there be the same. process for head of prosecution? There could be. I mean, that is one of the things that one might consider. You could have a more transparent application process. For example, I'm not entirely clear about how how really this works in practice. You hear stories of kind of whispers going around Parliament House in Edinburgh, who might be.
10:30
10:30
10:30
10:30
10:30
Speaker 1
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Speaker 1
It comes to public perception then, does it? It could, if you thought that the process of appointment is a key, is a key approach here, then it could be one way of buttressing the role. Again, though, it goes back to what are you choosing them on the basis of what's the judgment? Is it this kind of idea of. neutrality that we're bringing in the best kind of lawyer, however defined in according to whom? Or is it the kind of thing where a political judgment is appropriate? Again, this was discussed in the context of the Attorney general in the Supreme Court just a couple of weeks ago.
Is it the kind of appointment which is like the Prime Minister of the day, choosing their chancellor? You can get the Chancellor that you want, and it's not really a matter for anyone else to complain about. Or you can complain about it, but you can't challenge it. So yeah, it goes back, I suppose, to how political and how accountable you want .
Is it the kind of appointment which is like the Prime Minister of the day, choosing their chancellor? You can get the Chancellor that you want, and it's not really a matter for anyone else to complain about. Or you can complain about it, but you can't challenge it. So yeah, it goes back, I suppose, to how political and how accountable you want .
10:31
10:31
Dave Doogan
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Dave Doogan
Certainly a brief supplementary from Dave. Thanks, doctor McCormack with the dual role status quo, how significant is it an advantage for just the smooth operation of government, both in terms of legal advice and the running of the Crown Office and Procurator Fiscal Service, that the person in charge of both of those functions can never be in conflict because they are one person. So you will never find, under the current situation where the government's chief legal advisor is in conflict with the head of the Crown Office and Procurator Fiscal Service, and does that manifest under the status quo as an advantage?
And therefore, if if people were to look at splitting that role, that would have to then be a potential disadvantage.
And therefore, if if people were to look at splitting that role, that would have to then be a potential disadvantage.
10:32
10:32
10:32
10:33
10:33
10:33
10:33
Speaker 4
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Speaker 4
Cases, that means there's less money to spend on drugs cases. There's choices to be made about the distribution and use of resources. And that's the kind of thing which is done wearing the. prosecutorial hat, but being part of the government and. understanding their. objectives can be taken into account not just in Scotland, but in relevant circumstances too. So I think I think you make a good point.
It's important in the exceptional cases that the fireballs are erected and that recusals are are enforced. But .
It's important in the exceptional cases that the fireballs are erected and that recusals are are enforced. But .
10:33
Speaker 1
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Speaker 1
In day to day business, I think it is a good thing to have the two together. I mean, conflicts aren't necessarily bad things, right? I mean, we have just to take an example, the Northern Irish attorney general referred a case to the Supreme Court. about buffer zone legislation and whether it was compatible with article ten of the European.
10:34
10:34
Speaker 1
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Speaker 1
Under schedule six of the Scotland Act, the Lord advocate is able to intervene and chose to intervene. In that case. The Northern Irish Attorney General, I think, thought that there was some problem with human rights compatibility. The Lord advocate thought differently, anticipating Scottish. legislation on that very topic, and Lord Reed and his colleagues resolved the issue. And it was fine to have buffer zones around provisions of abortion related services. So I think conflict, if there is underlying legal difference of view and reasonable difference of view, is not necessarily something we should be concerned about. The frame of the Scotland Act is set up to allow law.
officers from this Parliament, the Attorney General, the Advocate General for Scotland to refer cases to the Supreme Court where they think there are. controversy and the Lord advocate is in the same the same position there. So I think the fact that, yeah, the offices are united isn't. necessarily an advantage, because if you were in government and think you're Lord .
officers from this Parliament, the Attorney General, the Advocate General for Scotland to refer cases to the Supreme Court where they think there are. controversy and the Lord advocate is in the same the same position there. So I think the fact that, yeah, the offices are united isn't. necessarily an advantage, because if you were in government and think you're Lord .
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Speaker 4
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Speaker 4
Doctor McCormack, you'd have to be quite brief. Please. I will do this very briefly. I just wanted to make the point that often the template to which people look is the England and Wales system, where there is a separate director of public prosecutions. And in that sense, the role has been split. But I would I would refer people in that context to the framework.
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Speaker 4
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Speaker 4
Because even there it does have a paragraph which says that the director still has to take into account the government's policies, you know, while bearing in mind they have to do stuff independently. I can't remember the paragraph number at my fingertips, but it's there, you know, so even when you have them split, it still is important to be cognisant of the .
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John Cooper
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John Cooper
Policy of the government. Thank you, John Cooper. Thank you, chair, just following on from from that point, I mean, there are obviously other systems you've made clear that you, doctor McCormack, are a fan of the current arrangement in Scotland, but alternatives are available. Other countries do this in different way. And you've touched on England and Wales there and that so-called. superintendence model. Do you think that could work in Scotland if there was a decision to go down that route, do you think it .
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Speaker 4
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Speaker 4
Unless you adopt Doctor Tackle's. recommendation to have two ministers. effectively with all the appropriate staff and both of them be accountable to Parliament in the way that the current single office holder is. There would be other costs and trade offs involved. You know, I could I could go through the framework agreement and and how that works. But I suppose it could be done in the same way that you could go to the very far extreme and adopt the Northern Ireland model, which I wouldn't recommend, but .
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Speaker 4
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Speaker 4
But you're recommending against that. You don't think that's a good idea at all. No. I mean, it's borne out of the particular circumstances of Northern Ireland where there was a very, very. significant lack of trust in criminal justice. institutions because of the troubles. And so the need for layer after layer of total independence from any political influence was paramount. But what it means in practical terms now is you have a director of Public. Prosecutions who is, in some sense, accountable to an attorney general who is. themselves totally. independent and not in a direct line of political accountability.
And so there is no direct line of political accountability. I suppose that's that's the key trade off. You know, it can be done, but you're legalising the institution. You would need to feel confident and secure. That legal accountability would be enough in Scottish society to maintain the legitimacy of the office. It is enough in Northern Ireland because of the unique context. But I get the. impression from my study of Scotland that, you know, it's quite. normalized to expect the Lord advocate to appear in Parliament and detect tough questions and to, you know, put the sunlight on the problem.
And so there is no direct line of political accountability. I suppose that's that's the key trade off. You know, it can be done, but you're legalising the institution. You would need to feel confident and secure. That legal accountability would be enough in Scottish society to maintain the legitimacy of the office. It is enough in Northern Ireland because of the unique context. But I get the. impression from my study of Scotland that, you know, it's quite. normalized to expect the Lord advocate to appear in Parliament and detect tough questions and to, you know, put the sunlight on the problem.
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John Cooper
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John Cooper
Think it would be it would be a backwards step to go down that road and just come to you. So you've talked about splitting the roles of the Lord advocate as the chief prosecutor, and then making the Solicitor General the sole government legal adviser, and being a bear of small brain. That seems straightforward and simple.
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Speaker 1
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Speaker 1
I guess it's much more complicated than that, though. Do you think it's doable? I think so, I mean, yeah, absolutely. I mean, there are undoubtedly complexities which are not contemplated in the evidence I've submitted to you. But if you look at the Scotland Act, I think if we look at what are the key things we'd expect legal adviser Solicitor General to have responsibility for, we'd expect them to have effectively the leadership over the Scottish Ministers litigation strategy. As you'd expect, you'd expect them to have an. involvement in informing the cabinet about legal related issues, and that would require changes to the Scotland Act, some of which would require either legislation from this Parliament in order to amend the Scotland Act or.
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Speaker 1
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Speaker 1
Section 30 of the Scotland Act enables, by order of Council effectively either schedule four or schedule five of the Scotland Act to be changed. Schedule five is all about reserved matters and schedule four is all the different parts of legislation which cannot be amended by Holyrood, so there's a route there for effectively subordinate. legislation to create space for Parliament to swap out . effectively in some areas. The Lord advocate for the Solicitor General, and I think just on the point of accountability, I think it is it is important. I mean, as I think Douglas Lumsden, you would maybe remember the post Office scandal when it really came to public consciousness after Mr.
Bates against the Post Office in. January 2024 resulted. within weeks, maybe even a week, about the Lord advocate being called to speak to what role, if any, the Scottish Prosecution Service played in that scandal, and she was recalled and had to answer further questions about that subsequently. That was a robust session, as it was underscored that there were apparent failures in Crown Office, which did contribute, in addition to the Post Office's own.
Bates against the Post Office in. January 2024 resulted. within weeks, maybe even a week, about the Lord advocate being called to speak to what role, if any, the Scottish Prosecution Service played in that scandal, and she was recalled and had to answer further questions about that subsequently. That was a robust session, as it was underscored that there were apparent failures in Crown Office, which did contribute, in addition to the Post Office's own.
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Speaker 1
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Speaker 1
It's been entirely appropriate for a prosecutor to come to Parliament to talk about what's gone right and what's gone wrong within their service, I think we'd be losing something significant if we. decided to simply dispense with that. After all, if we have the. superintendence model, I mean, why why would we prefer to hear from a minister who hasn't directly taken any of the decisions or isn't directly responsible, but is merely. superintending and is passing on what they've been told by someone you're not hearing from? That doesn't strike me as the best. approach to actually hearing from the horse's mouth, if you like, what exactly what has happened, and requiring that person to answer.
questions .
questions .
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John Cooper
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John Cooper
To anticipate challenges about how they have discharged their role. It's interesting you touched on the, the the Post Office scandal there, and I think we did get good scrutiny on that. I'm not sure that the Rangers malicious prosecution case would got quite the same. We certainly had an apology, but I'm not sure we got into the mechanics of what went horribly wrong there. So that whole .
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Speaker 1
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Speaker 1
Of that oversight, I think, is quite as complex as well. But it's political as well. I think one of the things which is interesting about this is, I think the current model of having sort of less. political lords advocate has caused a bit of role confusion, not for the incumbents in these roles, but actually often for. politicians and for the media. If someone is coming in front of your committee and saying, well, I'm not a politician and I strongly recommend you do this thing, then that can be quite politically powerful, right? It's not a politician making a political argument.
It's an independent prosecutor saying, we have to do this. You know, perceptions of neutrality can be politically extremely useful and have been weaponized by a range of political parties to argue why their particular view of a policy should be taken. So in terms of what Holyrood has done in terms of scrutiny of the Lord advocate, that's about political accountability and how it works in practice. And if it isn't working or isn't fully investigating everything it could investigate, that's because MSPs are not doing it, not because there isn't a .
It's an independent prosecutor saying, we have to do this. You know, perceptions of neutrality can be politically extremely useful and have been weaponized by a range of political parties to argue why their particular view of a policy should be taken. So in terms of what Holyrood has done in terms of scrutiny of the Lord advocate, that's about political accountability and how it works in practice. And if it isn't working or isn't fully investigating everything it could investigate, that's because MSPs are not doing it, not because there isn't a .
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Kirsteen Sullivan
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Kirsteen Sullivan
Thank you, Mr. Sullivan. This morning we've heard the word. perception used over and over. And I believe that that's something that is central to trust in discussions about trust. And I think as politicians, we are all very much aware of the. objective test and how things may be perceived by the average person in the street as potential conflicts of interest. So that being the case, what impact do you think that the recent Salmond and Operation Branchform cases have had on public .
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Speaker 1
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Speaker 1
That there are clearly tensions in these two roles, and we just haven't seen a case which has brought them quite so starkly into focus. But certainly I think it has given rise empirically, I'd say, whether rightly or wrongly, to. perceptions of confusion, even about what is the public. prosecutor doing sitting in the cabinet of the Scottish Government now? I think those are tensions which are likely to remain with us for reasons that we've already articulated.
But I think empirically, it's undoubtedly true that these cases have given rise, certainly on .
But I think empirically, it's undoubtedly true that these cases have given rise, certainly on .
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Speaker 1
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Speaker 1
Raises questions. Some people will believe they're guilty, not guilty, believe other people should have been. prosecuted and so forth. You know, those are debates which have been prompted as a result of both of these investigations. The Crown Office answer is these things will happen. Politicians of every political party have ended up being prosecuted, but Scotland being a smaller jurisdiction, I think it is more. susceptible to some of these. perceptions of bias. Clearly, the Crown Office have taken various steps to try and mitigate against that by having what they regard as a clear process of insulating decision making from involvement of the law officers.
And I guess one of the things underpinning this inquiry is whether that is,
And I guess one of the things underpinning this inquiry is whether that is,
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Speaker 4
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Speaker 4
I don't doubt that trust has been damaged by a scandal of any kind. A slightly reluctant to talk about the two cases. But what I have observed from a distance of a kind in relation to both of those controversies and others, is that critics who take an interest in them bend over backwards to make it clear that they're not making any criticism of the actual people.
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Speaker 4
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Speaker 4
Decisions taken in those cases. It is all about. perception and that that that's a difficult nut to crack because I recognise the significance of perceptions. But there are other means of attempting to tackle that which have been canvassed to some extent in Malcolm McMillan's. report about. education at our website. You know, engagement with the public about why the rules are as they are. As I was saying earlier, it strikes me that if people knew what was to be lost in terms of.
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Speaker 4
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Speaker 4
But by reforming the offices to such a significant extent as people have been proposing, I'm just not sure that they would they would agree that that's the way to improve trust in the institutions. But I'm not saying I'm not dyed in the wool about this either. It could be that something's necessary, a targeted set of reforms. This falls short of the .
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Kirsteen Sullivan
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Kirsteen Sullivan
Whole apparatus being cleaved in pieces. Do you think the. mitigations have been sufficiently. communicated with the public? Are they well understood by the public? Because if they're not, we could be in the same situation again where there is another high profile case that again, the same questions.
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Speaker 1
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Speaker 1
Or cases where politicians are involved is how they characterize that. So I think that does suggest a recognition on Crown Office's part that they haven't adequately. communicated to external. audiences about how they approach these issues. I would say to some extent, they have they've tended to approach it as a kind of ad hoc press release kind of situation where the Lord advocate announces that she's recusing herself from a particular investigation. And those have been canvassed quite widely in the in the Scottish media, but there hasn't been a systematic approach to it. And maybe that would be beneficial in the sense if you try and find out by going on to the Crown Office website, where exactly have one of the law officers recused himself, it's not exactly.
straightforward to do so. So it may be advantageous to have something like that. As I said earlier, I think the Law Society of Scotland have argued that you could have a statutory framework around this, which governs how this would work in cases of this kind. That might again, be something which would support greater public .
straightforward to do so. So it may be advantageous to have something like that. As I said earlier, I think the Law Society of Scotland have argued that you could have a statutory framework around this, which governs how this would work in cases of this kind. That might again, be something which would support greater public .
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Douglas McAllister
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Douglas McAllister
I'm guessing in the lead up to the petition appearance. And then the second one was in January 2026. And I'm guessing in the lead up to the indictment being served and becoming public knowledge. Do you think that was. appropriate for the First Minister to be provided with that confidential. information about those.
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Speaker 1
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Speaker 1
I wasn't asking about political advantage. It's just whether or not it was appropriate. Yes. Well, I think they go. But these go to questions of why people might think it wasn't. appropriate around this. I mean, certainly Operation Branchform was possibly the Leakiest police inquiry we've had in recent years that anyone who read the Sunday Mail was quite aware of lots of things about that, and I think it was eminently foreseeable in that case that there was likely to be, after his appearance on petition and. indictment proceedings against him. So I'm not sure how revelatory it was.
Certainly, if we look, though, at the nature of the information which was disclosed, as I understand it, it was factual that this has happened, and I've already canvassed the explanation, which has been given about why that it was for information. It didn't disclose anything that was in terms of strategy in the case or approach to the evidence or .
Certainly, if we look, though, at the nature of the information which was disclosed, as I understand it, it was factual that this has happened, and I've already canvassed the explanation, which has been given about why that it was for information. It didn't disclose anything that was in terms of strategy in the case or approach to the evidence or .
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Douglas McAllister
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Douglas McAllister
Do you not see that there's a problem, that this case was unique because you spoke about? At the end of the day, the Lord advocate has that. responsibility to their client, the client being the government. And the First Minister is quite right that they do all they can to advance the cause of their client, protect their client. But in this case, not only was the government their client, it was also the First Minister being a member of the SNP and the leader of the SNP, he .
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Speaker 1
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Speaker 1
Advocate or the advocate depute prosecuting the case. She is either recused or she is not. Yeah, no, I understand that argument. That makes sense. And it goes back to that point about what does recusal mean? Does it mean that you are having no involvement in the case at all, which is, I think, how many people would interpret it? And if you take that approach, then her being involved in disclosing this information seems potentially problematic. However, she does remain effectively. responsible for the operations of Crown Office, and therefore, some have argued, the faculty of advocates have argued it was entirely appropriate for her to do that.
But I do understand the distinction. I think recusal .
But I do understand the distinction. I think recusal .
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Speaker 4
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Speaker 4
As taking yourself out of the loop. Completely correct. The same is true. There's a parallel with England and Wales in that under the Framework Agreement, which governs the relationship between the Director of Public Prosecutions and the Attorney General for England, Wales, who is very politically active as a constitutional model. As you all know, in that.
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Dave Doogan
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Dave Doogan
Thank you. Chair. A brief supplementary from David Dougan. So, having established that it was appropriate, a doctor to kill for the Lord advocate to share that information with the First Minister, can I hypothetically turn that on its head and say, wouldn't it have been inappropriate for the Lord advocate to say, well, wait a minute, morals, crimes against the SNP? First Minister is a member of the SNP. I better not tell him about that because of that connection between this crime from moral and the victim of that crime and the First Minister's relationship to the victim of that crime, i.e.
the SNP. So her responsibility was discharged in telling the First Minister or disclosing to the First Minister that information after it had been served, and actually by not .
the SNP. So her responsibility was discharged in telling the First Minister or disclosing to the First Minister that information after it had been served, and actually by not .
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Speaker 1
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Speaker 1
Telling him she would be not discharging her responsibility. It goes back to what are these disclosures for? So of the 30, we are told that they were high profile cases where it was anticipated that ministers would be asked about them. I think taking that approach, this is clearly one of those cases where one would have. expected the First Minister to be asked about it. We've already canvassed the question about reminding of ministers, about contempt of court and the restrictions on what they have to say. I think, though, there is a sort of second option, which is really about what is the role of these independent Crown counsel in these cases, as I understood the last line of questioning, it was not.
necessarily arguing that it was inappropriate to disclose this information, but it might be inappropriate to involve a recused law officer in that particular process.
necessarily arguing that it was inappropriate to disclose this information, but it might be inappropriate to involve a recused law officer in that particular process.
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Speaker 1
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Speaker 1
I could certainly see that it would be harder to make that argument if everyone had found out at the same time. Certainly. That's right. And it goes really to what is the should should ministers find out these things at the same time as everybody else? I guess it goes to that. fundamental question. If that approach had been taken, that would have been it would have certainly resolved the controversy that's in front of this committee. At this point, I'm not sure whether the number does it matter? I mean, I ask that as an open question. Does it really matter what the specific number was of the particular.
combinations of banal. kleptomania Peter Morrell accumulated over the course of his activities? I mean, does it really matter whether there was 408,000? I am not sure whether I'm not sure. I understand the suggestion. That could have been to the political advantage of anyone in.
combinations of banal. kleptomania Peter Morrell accumulated over the course of his activities? I mean, does it really matter whether there was 408,000? I am not sure whether I'm not sure. I understand the suggestion. That could have been to the political advantage of anyone in.
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Patricia Ferguson
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Patricia Ferguson
Isn't really land in that particular field. Thank you very much. As we've heard, the Crown Office has now published two practice statements to formulate the arrangements for law officers and their approach to. communicating case updates. Do we think that or do both of you think that these statements are adequate to deal with the kind of concerns arising from Operation.
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Speaker 4
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Speaker 4
I'll go to doctor McCormick first. Then, in light of the questions that have just been asked, it could be said that greater clarity on who. communicates where Kriesel has taken place would be beneficial. And certainly see that would be would be one point beyond that, I suppose. I think one of the written evidence submissions you received, I can't remember who, but I made the point that, you know, who is a politically. I can't remember the exact expression used, but the people to whom these disclosures should be made, who falls into that class? I think a degree of clarification around that could potentially be helpful.
But on the whole, I mean, again, from my relative outsider's perspective, I thought. I thought they were a creditable response. You know, the questions I had were certainly answered. And there is a fair degree of clarity, certainly even about the. considerations which have to be run through when deciding what to disclose. And those are flexible concepts. And so there's only so much clarity you can ask for fairly, I think, because .
But on the whole, I mean, again, from my relative outsider's perspective, I thought. I thought they were a creditable response. You know, the questions I had were certainly answered. And there is a fair degree of clarity, certainly even about the. considerations which have to be run through when deciding what to disclose. And those are flexible concepts. And so there's only so much clarity you can ask for fairly, I think, because .
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Speaker 1
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Speaker 1
Contexts in case specific. Yeah. I mean, I think it goes back to that. communications piece again, that it is rather late in the day for these things to be materialising. And I think it's I really want to stress this, I think in terms of the broader issue of, of perceptions of bias, it's not actually likely to arise in the kind of branchform situation . Most commonly. That's a very uncommon example of this. It's much, much more likely to arise in cases where they've been involved as a senior lawyer, representing someone with a material interest in a public inquiry, a fatal accident inquiry or a case.
So I think it is important that there is clarity around that. And I do think, in general, that Crown Office is not always the best at being open and transparent about its internal.
So I think it is important that there is clarity around that. And I do think, in general, that Crown Office is not always the best at being open and transparent about its internal.
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Speaker 1
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Speaker 1
And therefore, I think they've come to this late in the day. And I think that's regrettable, because the public would have benefited, I think, from a clearer route, if you like, to decision making around this. But as has been set out in terms of disclosing these information, we talk about a high profile case. I mean, where's the boundary? We might all agree that this case over here is one that everybody's talking about, because it's on the front page of every newspaper. But you get into debatable land somewhere in the middle in terms of how that might work in practice.
So there does need to be a degree of flexibility. And they do talk about using the data protection language of is there legitimate aim in making the disclosure? Is it. proportionate to make a disclosure in that context? These are not legal rules. They are legal principles which are being considered. They're matters fundamentally of judgment in these types of cases. And clearly, previous law officers have engaged in that .
So there does need to be a degree of flexibility. And they do talk about using the data protection language of is there legitimate aim in making the disclosure? Is it. proportionate to make a disclosure in that context? These are not legal rules. They are legal principles which are being considered. They're matters fundamentally of judgment in these types of cases. And clearly, previous law officers have engaged in that .
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Patricia Ferguson
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Patricia Ferguson
Is that everyone had an opinion in Scotland and beyond, and everyone thought they knew the answers, and everyone thought they knew what should have happened. And I wonder whether there is a way that the Crown Office, the Lord, advocate the whole mechanism of of the legal system in Scotland can insulate itself in those particular cases. You know, there have probably been more. important .
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Patricia Ferguson
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Patricia Ferguson
To an extent, cases that have been. controversial in the sense of the decisions made by the Lord advocate over the years, but they have not been issues that the public have been so attached to, for want of a better term. So I wonder whether the I take your point entirely how do we. distinguish these things? But do you think a greater effort needs to be made to. distinguish that this is something that might provoke more public.
controversy than .
controversy than .
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Speaker 1
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Speaker 1
Therefore , we need to take a very specific approach to it, will you? I suppose you'd have to ask the Crown Office what approach it did take. All I can judge is based on the material that was put in the public domain. And in a sense, there are. inevitably where proceedings aren't taken, information which is not put in the public domain. Prosecutors in our system do not generally accept an outline, explain why individuals have or have not been prosecuted in advance of a case. So I think the inherent desire to protect the integrity of the justice.
process has can result in from what can look to the public, like sort of a black box, effectively that the evidence is fed in and you get the outcome. But what goes on inside the decision making process isn't always clear. We know that there have been prior examples of Lord advocates coming to Parliament to give statements. Elish Angiolini famously gave a statement after the collapse of the world's end case to considerable controversy at that time around that. So there are. mechanisms to do that. Equally, I would say, you know, the fact everyone has an opinion but doesn't know what the evidence is and is wildly speculating about it is is again, fully, empirically true.
But I'm not sure .
process has can result in from what can look to the public, like sort of a black box, effectively that the evidence is fed in and you get the outcome. But what goes on inside the decision making process isn't always clear. We know that there have been prior examples of Lord advocates coming to Parliament to give statements. Elish Angiolini famously gave a statement after the collapse of the world's end case to considerable controversy at that time around that. So there are. mechanisms to do that. Equally, I would say, you know, the fact everyone has an opinion but doesn't know what the evidence is and is wildly speculating about it is is again, fully, empirically true.
But I'm not sure .
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Patricia Ferguson
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Patricia Ferguson
In our public life in general. Do you think any of us would want to encourage that? But would you like to add anything, doctor McCormick? No. Okay. Thank you both very much. That comes to the end of our questions to you this morning. So I'd like to thank both of you very much for giving us your time and giving us your thoughts, too, on the process. It's been a really good way to begin our inquiry into this.
particularly interesting subject.
particularly interesting subject.
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Speaker 10
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Speaker 10
Report into the roles and functions of the Lord advocate. Thank you. Good morning chair. My name is Michael Clancy. I am the director of Law reform at the Law Society of Scotland, and it's a great pleasure to be here. I was not in retirement. I'm here because I represent the Law Society of Scotland, and .
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Speaker 9
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Speaker 9
View change at all during your review? My view on the dual roles of Lord advocate and whether or not it should be split. I have to say, I approached this piece of work with an open mind and. And I delivered the report still with an open mind. And I think it was important to do that at a very. specific remit from the Scottish Government. And my aim was to deliver that faithfully. All the work was done as a baseline study and with a view to future work by the Scottish Government. And the intention was, I believe, that there would be further work based on my report.
So looking at particular aspects of particular issues in greater.
So looking at particular aspects of particular issues in greater.
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Speaker 9
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Speaker 9
Looking at. options and bottom out the detail of those options and consulting. So for me, it was important to come with an open mind. Did I, did I finish with an open mind? I did. I, I did think long and hard about the issues and about whether there should be a split. And I think I'm in a tight rope on that because I find the.
arguments that there should be a split of the roles very. attractive as a matter of.
arguments that there should be a split of the roles very. attractive as a matter of.
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Speaker 9
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Speaker 9
Of the dual role? So that is essential question that I saw . And. Thinking about it deeply, I didn't find any way immediately available to tip the. balance in this difficult area of tensions and challenges. There wasn't, for example, a legal. principle that demands a certain answer. There were certainly. conventions out there, groin.
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Speaker 9
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Speaker 9
When and putting things in the balance. And one of the things that seemed to me of critical. importance to putting the balance was this issue, which this committee has questioning perception. What are the perceptions? And I suppose down the line, I would really like to see some kind of discussion about the perception of the public and what that effect is on the public confidence and legal system, because. The public confidence is absolutely critical perception. How do we measure it? You know, I'd like to see some kind of discussion about how we assess the public. perception and in particular, as public perception changed, given recent welcome.
developments such as the Crown Office circulars that were released in August. So these were the two things that .
developments such as the Crown Office circulars that were released in August. So these were the two things that .
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Speaker 9
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Speaker 9
Their own legal offices. Or moving on to publish or using the papers as a working draft to carry on to the second stage of the process, their own consideration. What actually happened was we entered into a process of comments from Scottish Government to me on the draft report, along the lines of could you clarify this or what do you think about this? Or could you add something in? So that was a. process and that lasted a good while.
The next critical milestone would be the first months of.
The next critical milestone would be the first months of.
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Speaker 9
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Speaker 9
When the government decided to undertake a peer review of the patient as it was then. So the approach to Scottish leading legal. academics and those. academics provided comments. So that started another process where the comments were put to me. I would look and consider, give it to the Scottish Government again, and then they would give me comments and feedback, and then I would give them the report.
So that. process finished in the summer of.
So that. process finished in the summer of.
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Speaker 10
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Speaker 10
As Malcolm's report shows, but there's been no. consultation on splitting the role. And so therefore, we had a meeting of our council in, in June of this year where we discussed this issue and came to the. conclusion that in order to. complete the. The issue, the Scottish Government or the SNP should carry through the.
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Speaker 10
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Speaker 10
The Scottish. Government should then take forward consultation. We always think that consultation is a good idea when you're changing the law, because it sets out the. parameters for the framework that you're going to approach in thinking about what legal structures you're going to put in place, and. especially in connection with a role such as the Lord advocate and the Solicitor General, close brackets. And, and I think that. consultation is, is a good way to gather proper. evidence about what academic thinking is, what professional. organisations think, what the general public thinks. And, and one way in which that issue of perception, which you've been discussing this morning, which Malcolm has referred to, is, is justified or not in terms of our.
perception about that perception. And so I think that if we want. legislation which is going to be a good law, I've talked about good law in more parliamentary rooms than I could count on one hand or two hands even. And good law is about making law, which is going to be.
perception about that perception. And so I think that if we want. legislation which is going to be a good law, I've talked about good law in more parliamentary rooms than I could count on one hand or two hands even. And good law is about making law, which is going to be.
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Speaker 10
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Speaker 10
Or something, or the policy was wrong or defective. So getting good. evidence through. consultation as one track, but also taking into account all the views of those stakeholders. And then that leads us to the point where we could with confidence say that we've covered all the boxes, and that was why we. suggested to the First Minister that. consultation should be the next step down the road.
towards forming the policy, whatever that policy might be. And we now know , benefit of hindsight, that on.
towards forming the policy, whatever that policy might be. And we now know , benefit of hindsight, that on.
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Speaker 10
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Speaker 10
The First Minister came to Parliament and explained what the next step would be, which would be to appoint Lord Boyd of Duncansby to carry out a review. And in that review, which is to start next year and I believe is scheduled to close next year, that that review would take into account all the evidence in.
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Speaker 10
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Speaker 10
For the Lord Advocate and Solicitor General would be most appropriate? What would be the. disadvantages and advantages of change and also to to view what. alternative answers there could be to the issue of where do we go from here? And of course, as Malcolm has said, a range of. options would be the sort of thing which one might.
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Speaker 10
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Speaker 10
It would be part of that part of that exercise. And whatever options this committee puts forward, I'm sure will be something which people will pay particular attention to. And, and so, so therefore, I think that takes us to today. And you've seen the evidence which the Law Society has submitted in connection with today's.
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Speaker 10
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Speaker 10
And I hope it comes. across that we are anxious that this is. We before we see it again, an ancient office, but it's an important one. And there are. considerable legal. principles which need to be thought about as we go forward to. examine the roles as they are at the moment of both Lord Advocate and Solicitor General. Because the committee's terms of reference for this inquiry, I think, rolled them up together.
And so I'll continue that tradition. And when I speak of Lord advocate, unless I say.
And so I'll continue that tradition. And when I speak of Lord advocate, unless I say.
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Speaker 9
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Speaker 9
Thank you, thank you. Kirsteen Sullivan. Welcome. Did you want to say something? Would it be possible for me to comment? Thank you for for that question, I'd like to add something from my own experience. Essentially, what I want to say is that as a solicitor, I endorse what Michael has said about the Law Society's call and the need for. consultation gathering evidence. This is from my own background and experience. I had a career in the government legal service for Scotland, and latterly I was the chief executive of the Scottish Law Commission, which is Scotland's independent law reform body, and giving advice on changing the law on particular areas.
And also currently I have a voluntary role I run, and the General Secretary of the Commonwealth Association of Law Reform Agencies, which again is a Commonwealth. grouping of independent agencies throughout the Commonwealth and how to reform the law. And what I want to say is that it is an essential part of the. methodology of law reform bodies to.
And also currently I have a voluntary role I run, and the General Secretary of the Commonwealth Association of Law Reform Agencies, which again is a Commonwealth. grouping of independent agencies throughout the Commonwealth and how to reform the law. And what I want to say is that it is an essential part of the. methodology of law reform bodies to.
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Kirsteen Sullivan
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Kirsteen Sullivan
We touched upon why Scotland has the dual role, but I think it's fair to say. At that point, it wasn't clear if there was any specific. consideration at that time of. devolution as to whether it should continue or we have something different. So I wonder if you could shed any light on that from your.
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Speaker 9
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Speaker 9
I'm afraid I don't have any light on what happened on the the. consideration behind the scenes, either politically or within the the civil service on the Lord advocate role in devolution. I simply had to get up to speed at some point with the Scotland Act provisions, as were. I myself was immersed in the
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Douglas Lumsden
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Douglas Lumsden
Constitutional points were not part of my remit. So from my point of view, we we have what we have in the Scotland office. But I think that's a really interesting question. Just just what did the. government of the day think about the dual role and why did they enshrine it? I think there are. advantages in the dual role. It's a system that exists. It's been made to work. One of the interesting things about preparing the research was the opportunity just to talk. Informally with former law officers. And they were quite a few comments came through that they.
appreciated the dual role and saw that the experience of one role and one job informed the other, and that all these. functions looked out globally are part of the rule of law remit. So although they look like two separate roles, there were. advantages to a former law officer of of having the two. Other other jurisdictions. Some other. jurisdictions also have the dual role for for the same reasons. And there are advantages in having the dual role in that. It enabled the Lord advocate, as the previous session showed, to to be involved in discussions about the.
resourcing of the prosecution service and to be the advocate for appropriate funding. Just coming briefly to the. disadvantages are have been explained as well during the earlier session. It's all about potential. conflict and perception of conflict. And that's that's an issue which we all need to face up to. And that's a challenge. We need to maintain the confidence of the public in the the legal.
system and in the decisions.
appreciated the dual role and saw that the experience of one role and one job informed the other, and that all these. functions looked out globally are part of the rule of law remit. So although they look like two separate roles, there were. advantages to a former law officer of of having the two. Other other jurisdictions. Some other. jurisdictions also have the dual role for for the same reasons. And there are advantages in having the dual role in that. It enabled the Lord advocate, as the previous session showed, to to be involved in discussions about the.
resourcing of the prosecution service and to be the advocate for appropriate funding. Just coming briefly to the. disadvantages are have been explained as well during the earlier session. It's all about potential. conflict and perception of conflict. And that's that's an issue which we all need to face up to. And that's a challenge. We need to maintain the confidence of the public in the the legal.
system and in the decisions.
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Douglas Lumsden
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Douglas Lumsden
As well. I suppose the process that we're envisaging would be something which hopefully flush out as many of the issues as possible, and that that is why we advocate for a reasoned. approach of our consultation process that looks in detail at all the roles of functions for both Lord advocate and the Solicitor General. Drills down into 1 or 2.
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Speaker 2
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Speaker 2
Can throw up the. interpretation of a piece of. legislation which doesn't work quite like the way the. creators of that legislation thought it would be would. And so I think that we at least have that. backstop to to be able to then have a the, the judges guide and guide us in the interpretation of the legislation. We could have the, the, the judges explain what's the matter and maybe invite Parliament to intervene. There is also the. possibility that when the bill is going through whatever. legislative process it's going through, the ministers. involved will have the opportunity to make statements about how they.
perceive aspects of the bill, which appear to lack clarity. It could be. interpreted the so-called rule in Pepper v hart. And that, I think, is quite an important element, again, for the guidance of making.
perceive aspects of the bill, which appear to lack clarity. It could be. interpreted the so-called rule in Pepper v hart. And that, I think, is quite an important element, again, for the guidance of making.
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Speaker 2
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Speaker 2
The process of drafting and the process of. introduction might be caught, and that rule would apply in the United Kingdom Parliament, of course, but also in the Scottish Parliament, getting to the Scotland Act and having the Lord Advocate and Solicitor General placed within the devolved sphere. And depending on who you talk to, you can get stories of people being upset about this sort of thing. But I think, and I'm pushing my memory at this point, because I was involved in.
advising opposition.
advising opposition.
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Speaker 2
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Speaker 2
Then in in Parliament on the. consequences of the bill. But I think this issue of the rules being. devolved might have been mentioned in the White Paper, Scotland's Parliament. That's a memory which needs to be verified. So there is an unintended consequence that I misleading you, and I don't want that to be the case. But but with that caveat, we can say that. When the bill.
arrived at.
arrived at.
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Speaker 2
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Speaker 2
My recollection is that the Lord advocate and the Solicitor General were put into the devolved arena and that the UK law officer was. created in. legislation as the Advocate General for Scotland. And as we know, the Advocate General for Scotland is a different type of law officer from the two others in the. legislation in the Scotland Act. Inasmuch as there is no. prosecutorial role for the Advocate General for Scotland, nor indeed for the Advocate General for. For Northern Ireland, or. Or Northern Ireland. So. So I think that that's that's where it comes from, is that it was in the mind of the the.
designers of the white paper, which would have included Donald Dewar, Wendy.
designers of the white paper, which would have included Donald Dewar, Wendy.
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Kirsteen Sullivan
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Kirsteen Sullivan
Human Rights Committee, Ian Jamieson. Mr. McMillan, if I could ask you very, very quickly, because I'm mindful of time. You mentioned the perception issue, and I just want to understand, if you think there is a perception. problem when the head of the system of. prosecutions is also a government minister. And I guess particularly when there are criminal cases.
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Douglas Lumsden
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Douglas Lumsden
Wanting to be reassured about it, but also flagging up the tensions in the dual role. So I think together that gives a sufficient picture to say, yes, it really must be an issue of perception here, and we must take that very seriously and explore that. Further questions, for example. To what extent could the recent release by the Crown Office of .
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Douglas Lumsden
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Douglas Lumsden
How far does that go in meeting. concerns or not? And it would be be good to test that. And then the other other other suggestions that came from former law officers were about. education of the public, about the Scottish law officers and how they operate and what the safeguards are. And is there a case for. increasing knowledge and. awareness among Scotland about the roles to understand better how the dual role .
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Douglas Lumsden
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Douglas Lumsden
Alternatives to the dual rule. It's very interesting looking at the international perspective. So thank you very much. And this was all pretty much a learning experience for me when I was doing some research. I did know roughly that there were other systems with other structures in place, but I didn't know much detail. What I should say is that what the Scottish Government's remit was looking for here on international.
perspectives was a a broad brush, a skate around other.
perspectives was a a broad brush, a skate around other.
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Douglas Lumsden
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Douglas Lumsden
But in particular they do have. Commission the Venice Commission, which gives advice and it is only advice, is not binding to give advice to particular member states on their issues. And so one of the interesting things was to to look at the Venice Commission's report on Malta, which did have a model of the dual roles for the. prosecutor and legal adviser, that a dual role for the Attorney general, while they were not going to make direct comparisons between Scotland and Malta, and there were very particular and serious issues happening in Malta at the time. Nevertheless, in that case, it's interesting to note that the Venice Commission did say the dual role is.
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Douglas Lumsden
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Douglas Lumsden
Malta went ahead and did that. So that kind of report does give rise to arguments on either side, because on the one hand, it's not binding, it's advisory. And you could argue the. circumstances in both are very different from Scotland. And that is absolutely true. But there's also a. recognition in Venice Commission that in small. jurisdictions in.
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Douglas Lumsden
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Douglas Lumsden
It's normal to find a mix of functions. I suppose that's about economy of scale and government administration. But is it is. acceptable and normal to find a mix of. functions and small states given to a. particular minister or law officer? So that was very interesting, but didn't give a final solution. We looked at a number of other states which were. Either suggested by former law officers or suggested by Scottish Government officials. Or which came up on internet. searches simply because they have a dual role for their attorney general. And that gave an interesting pattern that there there are a number of.
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Douglas Lumsden
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Douglas Lumsden
Most of them small, which have this dual role for their attorney general or law officer Juro being head of prosecutions and chief legal adviser. And a few of them still do. But the research also showed that there were quite a number of. jurisdictions which looked at the issue and went on to split the roles. And that includes England and Wales. There's Ireland, there's Northern Ireland, Malta, obviously, and Mauritius. So there's .
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Douglas Lumsden
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Douglas Lumsden
So it's interesting to look at these models and it's all done differently. The points point has been made that each. jurisdiction has very special. complexities due to their own history and how the offices have evolved. So there's no one size fits all and going for a split. And when you look at the options that have been.
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Douglas Lumsden
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Douglas Lumsden
The they do bring. disadvantages in different cases. And that is why it would be of particular use to consult on the basis of detailed options that look at how things have been implemented elsewhere. This is the point that doctor McCormack makes so forcefully, is that you've got this. balance between. accountability and. independence and trust. And when you move one leg of this, of these.
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Douglas Lumsden
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Douglas Lumsden
When you're changing something about laughter, you lose something. So, for example, other. jurisdictions have, as you mentioned, the. superintendents model that we have in England and Wales, or the attorney general has a roll of. superintendents in relation to the Director of Public Prosecutions. That's a different system. What does it mean constitutionally? What do you gain or lose by that? You haven't done a general who is that more distant but has. powers in relation to the the DPP. And that raises interesting issues when. I suppose my conclusion is there is no perfect answer here. There's no one size fits all.
And when you look at other.
And when you look at other.
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Douglas Lumsden
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Douglas Lumsden
Thank you. Douglas Lumsden Yeah, thank you chair. We're talking in the last panel about, you know, whether the what actually an officer recusing themselves actually meant. So, Mr. Clancy, if I can ask you, do you think that the process for officer recusing. themselves should be actually set out? So .
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Speaker 2
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Speaker 2
In a sense, many people are involved in. politics at the moment. We, Malcolm and I, are involved in politics, but not party politics. And so therefore, having a good. definition of why one would recuse. oneself as Lord advocate, because person A is a. politician would be, I think, a start. And there is a politically exposed persons.
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Douglas Lumsden
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Douglas Lumsden
But the. definition of recusal, and that the Lord advocate had recused herself from taking part in. decisions on a on a case. But she was still, we think, being. informed on on that case. And should it not be maybe defined, that recusal would actually mean that person is taken out of all, not just .
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