Adjournment Debate - Scotland Act 1998: Role of the Lord Advocate, 20 July 2021
Kenny MacAskill MP (East Lothian) (Alba)
"Before the post of Secretary of State for Scotland was created, the Lord Advocate was the power in the land, and some postholders were despotic indeed."
"Thankfully, the post evolved and became a purely legal role, but an anachronism was built in, for the postholder is both principal legal adviser to the Scottish Government yet also head of the prosecution service—the Crown Office, as it is known.
"That is something replicated neither elsewhere in the United Kingdom nor, indeed, in any modern democracy. Conflict of interest precludes it.
"In England and Wales, an Attorney General advises the 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."
"The Lord Advocate and Law Officers, along with Ministers, are part of Scotland’s offices of state. They are enshrined in the Scotland Act 1998, which established the Scottish Parliament. That is why legislative change is required"
Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)
"Does my hon. Friend share my concern that, even in the absence of any evidence of wrongdoing or malfeasance, any continued failure by the Scottish Government to address the separation of powers reinforces talk of deliberate and targeted harassment of individuals critical of the Scottish Government, their policies and their leadership, including their role in the Salmond affair?"
Kenny MacAskill
"Absolutely. There is a clear perception of there being far from equanimity or, indeed, even balance by the Crown.
"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 is an imperative in a democracy. It must be seen to act in the public interest, not that of the Government or their 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 among senior Crown staff, his career has not simply been as a procurator fiscal in Scotland, but has included service in and secondment to British Government Departments."
Joanna Cherry KC (Edinburgh South West) (SNP)
"...is he aware that the First Minister of Scotland has recognised that there is a case for reform and does he agree that all that is really needed is for this House to pass a Bill to amend the Scotland Act to give the Scottish Parliament the power to make alterations to the role of Lord Advocate?
"The Scottish Parliament could then properly consider what I think he is suggesting—that is, separating the position into roles akin to the Attorney General and the Director of Public Prosecutions in England.
"I stress that I am not making any comment on the cases that he has mentioned. I am simply drawing to his attention the fact that the First Minister has recognised the case for reform and that this might be the best way to do it."
Kenny MacAskill
"...I do accept what the hon. and learned Member says—that it should be for the Scottish Parliament to decide what the structure should be."
"I call on the Minister to engage with the Scottish Government as a matter of urgency so that changes can be made to the 1998 Act to provide for a complete separation of powers between the head of the prosecution service and the senior government legal adviser."
David Duguid The Parliamentary Under-Secretary of State for Scotland (Conservative)
Scotland Act 1998
Section 48 provides for
. the appointment of the Lord Advocate and their removal from office
. the independence of the Lord Advocate in their capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.
This was to ensure the traditional independence of the Lord Advocate when taking decisions related to those matters continued after they became a member of the Scottish Government.
Section 29
The Lord Advocate’s role as head of the systems of criminal prosecution and investigation of deaths is protected from modification by an Act of the Scottish Parliament.
"The hon. Member for East Lothian has mentioned the limitation on legislative competence in section 29, and any formal separation of responsibilities would require legislation.
"UK Government have the power to bring forward legislation to make this change, in practice we would want to ensure the Scottish Government have first put their proposals to the Scottish Parliament for scrutiny."
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