EMBARGO: Tuesday 20 July 2021. (Also attached)
Adjournment Debate – Role of Lord Advocate 
Mr Speaker,
I believe that many of the ills that afflict Scotland can be laid at the door of this Tory Government. One that hasn’t been elected in Scotland, not for the 55 years of hurt experienced by English football fans, but for 65 years. Longer than I’ve lived. Independence is therefore essential.
But not all ills rest there and some along with our demons, such as alcohol and’ violence, can be and must be addressed by ourselves. The role of the Lord Advocate’s one.
The Lord Advocate and Law Officers along with Ministers are part of Scotland’s Offices of State, enshrined in the Scotland Act 1998 that established the Scottish Parliament. It’s why legislative change here’s required.
So, I’m grateful for the opportunity to raise this, welcome the willingness of the UK Government to assist and hope that urgency will now be shown by the Scottish Government. Scottish democracy badly requires it.
Before the post of Secretary of State for Scotland was created the Lord Advocate was the power in the land, and some were despotic indeed. The transportation of Thomas Muir and the hanging and beheading of Baird Hardie and Wilson, the Scottish Radicals and 1820 Martyrs, are crimes that lie with them.
Thankfully the post evolved and became a purely legal role. But an anachronism was built in. For the postholder is both principal legal advisor to the Scottish Government yet also head of the prosecution service, or the Crown Office, as it’s known. Now that’s something neither replicated elsewhere in the UK nor indeed in any modern democracy. Conflict of interest precluding it.
In England and Wales, an Attorney General advises Government from within. Meanwhile, a Head of the Prosecution Service is both separate and independent from government. But not so in Scotland and therein lies the problem. 
To be fair, apart from those despotic years post holders, irrespective of political hue and whether pre or post devolution, have acted with the impartiality expected. Modest steps were taken to mitigate the conflict of powers. 
Under Alex Salmond’s administration a convention was invoked that the Lord Advocate only appeared at Cabinet when legal advice was to be given and didn’t participate in wider political debate. But the anachronism still lingered. 
Under Nicola Sturgeon’s administration it has been brutally exposed by both Scottish Government and Crown Office actions, and with the Lord Advocate straddling both. Change is now needed and fast.
Firstly, there’s been an admission by the outgoing Lord Advocate of malicious prosecutions involving the administrators in the Rangers FC liquidation. That’s unprecedented in Scotland not just in recent years but since those days of the early 19th century. Even south of the border there have been none since 1999 and high-profile cases before such as Winston Silcott and Daniel Morgan were rare.
It has caused alarm with the public and been of huge reputational damage in an organisation where impartiality is imperative.
It has also caused consternation and anger within police and prosecution services, where the overwhelming majority of staff act without bias and free of any favour or prejudice. The reputation of the many has been traduced by a few.
It was the former Lord Advocates’ decision and seeking to cast blame on his predecessor was shameful and inadequate.
An inquiry, perhaps even by a non-Scottish judicial figure, has been promised. Additionally, there’s the financial cost. Quantum of damages is for the court, but suggestions are the final bill could reach £60 or £80 million. 
This in an organisation with an annual budget of £300 million, struggling to meet existing commitments. The price will be paid by Scottish Taxpayers and the loss felt by hard pressed Scottish public services.
Secondly, and just as alarmingly has been the role of the Lord Advocate, and a coterie around him within the Crown Office, in the Alex Salmond case and the fallout from it. Another instance, of the public having to pay the price of government incompetence, with the legal expenses bill in the civil case amounting to £500,000.
But where again impartiality, as well as competence was raised. In the civil case the Presiding Judge described the Scottish Government’s actions as “unlawful, unfair, and tainted by apparent bias”.
During proceedings senior external counsel, Roddy Dunlop QC, Dean of the Faculty of Advocates, expressed horror at the situation he and his colleague had been put in by their client, where they could no longer rest on pleadings they knew to be untrue. The client was the government and their senior legal advisor was the Lord Advocate.
A criminal case followed the failed civil case and prosecuted by the Crown Office where the same Lord Advocate remained in office. Despite growing pressures on police and prosecution nothing has been spared, nothing has been too trivial, but the targets always seem selective.
The Alex Salmond case saw resources deployed, normally reserved for a serious organised crime figure or a serial killer. Yet for charges that other than for who was being prosecuted, would either never have seen the light of day or only appeared in the lowest courts, not the High Court.
I say that as someone who was Justice Secretary for 71/2 years but was also a defence agent for 20. As it was, Mr Salmond was acquitted on all charges and by a majority female jury.
Now it’s standard practice in cases involving politicians that the Lord Advocate recuses himself from involvement in the consideration or prosecution of a case. And that was done here with no direct involvement in the prosecution.
But at the same time, he had been and was sitting on Scottish Government committees dealing with the civil case and where referral or prosecution was being actively sought and advised by the administration. 
Let’s recall;
A prosecution was sought by the Scottish Government as the actions of the Director of HR in contacting the police confirm.
Many complainers, indeed, most, were and remain at the heart of Government or are officials or otherwise closely linked with the Governing Party.
Prosecution was encouraged and pressed for by the Chief Executive of the governing party and who’s the First Minister’s husband.
Chinese Walls and recusal are entirely inadequate. In one role the Lord Advocate was supporting a government pursuing prosecution, in another he was denying it was anything to do with him.
A separation of powers this certainly wasn’t.
When James Wolffe appeared before the Holyrood committee considering the Salmond prosecution, he was frankly evasive and obfuscating, mirroring the actions of the Crown and Government in a lack of openness and transparency. There was neither contrition nor candour. Open Government this certainly was not.
And the fallout and failures continue to reverberate. Following on from the Alex Salmond case has been that of Craig Murray, a writer and former diplomat.
Now his conviction’s under appeal at the Supreme Court. Accordingly, I refrain from commenting on specifics of the case. Instead I restrict my remarks to the decision by the Crown to prosecute Mr Murray for jigsaw identification of complainers in the case.
But why was he prosecuted when others weren’t. In one case certainly overtly and in many others much more flagrantly than by Mr Murray but no action was taken against them.
Moreover, there were publications which in any other case would have constituted a clear contempt of court but that went without censure by the Crown. They included newspaper articles that were as prejudicial as I’ve ever seen. 
But they were supporting prosecution whereas Mr Murray though seeking to report factually wasn’t. It does seem that the Crown has one law for those supporting the government line and another for those who challenge it. 
Neale’s Intervention:
Now James Wolffe has stepped down as Lord Advocate, replaced by Dorothy Bain. Ms Bain has an illustrious record of service and I wish her well, but the structural flaw remains. 
Personnel changes no matter how merited cannot resolve the fundamental flaw of a lack of separation of powers. The Impartiality of the Crown’s an imperative in a democracy. It must be seen to act in the public interest not that of the government or its friends or allies.
The coterie who surrounded Mr Wolffe and who were instrumental in driving these policies and actions, often against the wishes and views of long serving staff still remain. In particular the Crown Agent Mr Harvie, the senior civil servant. Unusually amongst senior Crown staff his career hasn’t simply been as a Procurator Fiscal in Scotland but has included service and secondment to British Government Departments.
The situation is now critical as a police investigation has opened into the SNPs finances. The party leader is First Minister. Her husband is Chief Executive.
A situation that would be intolerable in any public body or private company or even in a bowling or social club in any Scottish Town. The idea that the Chief Steward could be the spouse of the Treasurer would draw derision and rejection but not so in Scotland’s governing party.
Worsening that further’ s the fact that all three members of the SNP Finance and Audit Committee resigned from their roles when refused information by the Chief Executive.
That has been followed by the resignation of the elected Treasurer, the Honourable Member for Dunfermline, for similar reasons.
Given what has happened, can the Scottish public be assured that the investigation will have access to all information and that any decision to prosecute or not, will be made on legal criteria and in the interests of justice. 
Protocols have failed, been breached or even abused. Interim steps can be taken to separate the roles.
Perhaps, there should not just be a recusal as there no doubt will be by the Lord Advocate but as with the Rangers FC investigation, the bringing in of an external Judicial advisor.
Moreover, the Lord Advocate has recused herself from involvement in the Rangers FC civil proceedings. Maybe she should recuse herself from all direct government involvement.
An Inhouse legal department exists. The duty to represent the Government in court and pursue constitutional challenges remains but that can be dealt with by external counsel.
Change and a separation of powers there must be. The twin roles of the Lord Advocate in prosecution and in advising government are an historical anachronism and entirely unsuited to a modern democracy. 
As a former Justice Secretary and someone who has practised law in Scotland for over 20 years and cherishes our distinct system, I’m appalled at what has happened. And I know that’s echoed in legal circles. 
I call upon the Minister to engage with the Scottish Government as a matter of urgency so that changes can be made to the 1998 Act.
Changes providing for a complete separation of powers between the Head of the prosecution service and the senior government legal advisor. Every modern democracy does and so must Scotland.
The failures have been too many and the risks too great.
For justice has not only to be done but must be seen to be done.

25 thoughts on “TODAY IN THE COMMONS

    1. Perhaps read the speech again. He was Minister during Alex Salmond’s administration when there was a de facto separation of powers.

      Liked by 8 people

      1. Sorry, I was not taking issue with your entirely valid comment as such. I was simply venturing an answer to “Why now?”. Incentive to fix the constitutional flaw arises exponentially because potential impropriety has now become actual. Incentive is further galvanised by perhaps conclusive collateral damage to Nicola Sturgeon if proven to be implicated. I think this can be picked up from Kenny’s speech. Hence my “bridgehead” remark.

        Liked by 4 people

  1. I’ve still to watch this one, but I was going to post one I watched earlier; excellent speech from Kenny, impressive:

    Liked by 5 people

  2. Walter,

    When Kenny was in government, Alex Salmond kept the separation of powers by not allowing thd Lord Advocate into Cabinet.

    It only became an issue since the present FM came to power and abused that position, and the Lord Advocates one.

    Why now – because some people can’t be trusted with positions of power, so the law needs changed to prevent abuse of power. The Scotland Act was poorly thought out and should have addressed it in the first place – it was probably considered unthinkable to abuse that position back when there were a few principled politicians, but there don’t seem to be any in the Scottish Parliament any more. Now there is a fair amount of urgency surrounding the issue.

    Would you prefer he kept quiet now because at one time he didn’t think it a major problem?

    Liked by 21 people

  3. I have very mixed feelings regarding this. Like Walter Hamilton, above, I wonder why it’s taken so long? I expressed this on ‘Wings’ when Macaskill experienced his Damascene moment. Yes this undemocratic and evil situation needs revealed in its ugly reality and dealt with, once and for all. But here we go again, begging England to sort it out for us. When David Davis did his Judas goat bit on this , it raised my suspicions. It plays into the hands of Boris and his fascists and gives them all the ammunition to dismantle Scottish institutions totally.

    To be clear: I want the Murrells to face justice and all the others involved in the murky unsafe prosecutions of Salmond, Murray et al. But I want Scottish politicians to be the ones to carry this out. This is why we must start concerted moves with the UN to sort out our Sovereign rights first.

    Liked by 11 people

    1. It’s in the Scotland Act. The FM, the Lord Advocate and the Solicitor General. They are the only three ministers who must be, by law, in every Scottish Government. The only three going by the link below. Why it was set up like that I don’t know but to quote Jason Michael, it is ‘quicksand’ that we are in. Maybe it was a mistake!

      Colin Boyd brought the issue to a head/into further disrepute in Scotland but it was already an issue that needed to be dealt with urgently. Kenny MacAskill talks about the separation of power in England but I remember clearly the Iraq war and the ‘Is it legal is it no legal charade’ between Blair and his Lord Chancellor. I think one resigned and then Lord Falconer ponced about for a month or two kidding us on that there was a question hinging in the air somewhere. . it was a live issue in Scotland and I was under the impression that it had been dealt with under Alec Salmond’s government at the time. It wasn’t. MacAskill and Salmond were far too casual about it. It looks to me they were naive. What was to stop the ‘next one in’ abusing the setup?

      Why is MacAskill so casual about the top UK civil servant being the line mgr of the CEO of the Crown Office? To my mind, it is about more than getting the Lord Advocate and his second in command out of government. There are links between the British Civil Service and Scotland’s Crown Office Procurator Fiscal service that should not be there. I like MacAskill, I think he is a genuine Scottish nationalist but even now they talk about doing half a job.

      Liked by 4 people

      1. What is to stop the top civil servant in Scotland and her direct report, the Crown Agent working together on issues of importance to the security of the UK State that employs them?

        Liked by 6 people

    2. Another thing that I found disconserting was the intervention by Joanna Cherry indicating that Sturgeon was quite in agreement with the English parliament ruling on this or altering the SA to reflect that

      I felt that Cherry was giving Sturgeon an out , if Sturgeon was in agreement that the position should be altered why has she utilised the exact opposite to her benefit , and why has she NOT indicated her agreement previously , also given the total failure of Sturgeon to act on the vile actions of her supporters on Cherry I am extremely concerned and suspicious at the promotion of Sturgeon’s supposed aquiescence by Cherry

      Liked by 1 person

  4. Kenny (and Neale) make key points but I suppose it has only been in the Salmond affair that it has been blatantly obvious re the Lord Advocate’s dual role.

    Ironically, it should be for Westminster to make the required changes in the 1998 Scotland Act concerning the Lord Advocate’s compromised position. It could be done quite quickly but might Westminster leave it as it is for us to “stew in our own juices” and bring the SG and Prosecution Service into even more disrepute?!

    A thought for others to follow up.

    Liked by 12 people

  5. Well said, and quite restrained given the lack of decency and integrity shown by key figures. Within a few years they have corrupted and wrecked an honourable and much respected legal system and it is sad that just when robust media coverage has been desperately needed it has been so feeble.

    Liked by 10 people

  6. Watched it and excellent speeches by all to be fair, highlighting the personal vendettas of the current SNP cabal.
    What did concern me however, is the Westminster response that basically the Scottish Government should approach Westminster with their proposal (after agreement and discussion in the Scottish Government) to make change to the Scotland act to allow the Scottish Government to make changes to the role of Lord Advocate.
    The current SNP/Green SG is doing exactly as it pleases right now, and immorally using the lack of separation of roles to it’s own personal advantage. Therefore, I cannot see in all reality the turkeys voting for xmas. No way they will want to separate the roles when the current set-up enables their vindictive and dictatorial natures.
    Note my use of Scottish Government earlier, as really the only possible support we would have for this, would be, dare I say it, from the Tories as the other parties will either abstain from any vote on the proposal ( LD and Lab) and the greens do just what Nikla says, therefore, no discussion, no proposal, just more of the same until the top layers of the current “ruling party” are gone.

    Pretty sure something similar happened in history……………………………………

    Liked by 5 people

  7. I am weary of trying to change anything while part of the Union. Go for independence and then we can change what we like. Single minded pursuit of independence is the way forward.

    Liked by 5 people

  8. it should be pointed out that the SNP’s Justice spokesperson, Anne McLaughlin walked out when Kenny started speaking. Maybe she had a dance recital to attend??? Joanna Cherry QC remained seated and listened to the speech!

    Liked by 9 people

    1. I did wonder how anyone could think that a necessary move . I am also beginning to wonder why we have SNP MP’s with such closed minds that they don’t need to listen and indeed , why they attend Westminster.

      There is another unfolding debacle of juryless trials in sexual cases – juryless trials are a compete anathema to me and should be to all folk with even a cursory interest in fair play. ( Obviously I now exclude the SNP form ‘fairplay’)

      Liked by 7 people

  9. One reason I supported independence in Scotland was that it would be a small polity. Naively I thought then that it would be easier to hold government to account and fully expected that there would be a constitution with that crucial aim in mind. Obviously the present incumbents were listening to conversations during the indyref about oversight and keeping the government honest and accountable and were determined not to let THAT happen.

    Plainly the Sturgeon cabal decided that they were not having any of that and is also probably the reason they did not want to move to independence. They have worked with the powers they have to make this a secretive and controlling administration which inevitably led to being corrupt and anti-democratic, the distorting mirror of what we had fondly imagined.

    Small government is not necessarily good government if the right checks and balances are not in place. A government can get away with the worst assaults on democracy if they have the media and judiciary on side. But worse even than that, is how supine and wilfully deluded are those who elect them. Democracy is useless if much of the electorate seems unable to understand that politics in Scotland is a black light show and their perceptions are being massively misdirected. ( We could do with a Scottish George Orwell but the Scottish intelligentsia seem to be permanently out to lunch. Perhaps they think that politics is ‘so last century’. It would be nice, though, during her book-reading if La Sturgeon should be confronted by a book that was a scathing portrait of her governance and Scotland’s tragedy.)

    One might have thought that the opposition parties could have pounced on the serious subverting of democratic governance, yet strangely they seem unable to muster a challenge. The Greens, of course, are entirely onboard with the dictatorial and dishonest way of governing. But what about the others? The laughable Fabiani enquiry revealed them unable or unwilling to bring any moral imperative to bear on a blatantly lying administration.

    Perhaps there is a purpose in remaining absurdly ineffectual or perhaps they are simply hopelessly incompetent. Anyway, Scotland has been ill-served by the many of the people who sit in Holyrood – either bumbling time servers or shamefully dishonest. We have a Tammany Hall parliament and it’s a disgrace to Scotland.

    When I look back on what I had hoped for Scotland and what it turned into it’s like wakening up in a parallel universe where everything was reversed.

    Liked by 9 people

  10. Maybe worth making the general point again here that the broaching of these matters in Westminster rather than Holyrood is primarily because only the former allows names to be named. MSPs do not have that prerogative and immunity. For those who missed it or lost it, here is the speech by David Davis on the current topic back in March:

    David Davis MP: Westminster speech re Scottish Government evidence to Holyrood Fabiani Inquiry (16 Mar 2021)

    Liked by 5 people

  11. The gaping hole MacAskill has is that he was the justice minister advocating the abolition of the Scottish concept of corroboration.

    I’m still on board but he needs to recognise and atone for his failings.

    There are many still in the legal fraternity who recall his attitude as Justice Minister and his failure to accept his errors.

    Does he repent?


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