As the dust settled on last month’s election there was a slight reprise of the turbulence of the Scottish Parliament inquiries from earlier in the year when James Wolffe announced he was to step down as Lord Advocate.  

At that time, baseless allegations flew around of the abuse of power by the Crown Office – the criminal prosecutor headed by the Lord Advocate – with Alex Salmond, the former First Minister, naming Wolffe as an individual who should resign. It was alleged that holding the role of head prosecutor and being the Scottish Government’s main legal adviser was incompatible.

Although the vote for Holyrood was pretty much “as you were”, with a minority SNP government the outcome, could Wolffe’s resignation prompt a radical shake-up of this institution that has its roots in pre-feudal Scotland?

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This has also been raised this week with Kenny MacAskill MP, Salmond’s Justice Minister and now fellow Alba Party member placing an Early Day Motion for discussion in Westminster. This motion is unequivocal, stating that the Lord Advocate as it stands is “entirely inconsistent with the needs of a modern democracy”. 

It is perhaps surprising that an examination of the political manifestos issued in the Scottish elections shows that of the main parties the only one that unambiguously called for the scrapping of the position was the Liberal Democrats who lost a seat. The SNP stated that they would “consult” on the joint role and reduce the Lord Advocate’s presence at meetings of the Scottish Government.

In line with this more cautious approach, Nicola Sturgeon stated in Holyrood following the election that “there is a case for reform” of the role but it would “take time”.  There is a clear logic to this as the Lord Advocate has been an integral part of the devolved settlement.  

By being the nominal head of the Crown Office – with the detailed running of the prosecution carried out by another individual the Crown Agent – and a member of the Scottish Government it has meant that every aspect of our criminal justice system has been subject to legal scrutiny under the European Convention of Human Rights.

For example, when MacAskill was in, official police powers were limited to protect people from abuses of legal process when detained.  This happened because the Lord Advocate as part of the Government had to follow all aspects of human rights law. There were also important reforms to the appointment of judges to make it more transparent.

Also, as a member of the Government Wolfe and his predecessors have regularly appeared in front of the entire Parliament to answer questions on controversial cases – including in the last year the Salmond Case and the “malicious” prosecution of the Rangers administrators. Such accountability would have been a pipe dream prior to devolution but also would be difficult to replicate if the Lord Advocate’s current role is scrapped hastily. 

The call to action imagined in MacAskill’s motion also ignores the importance of having a “lawyer in the room” whilst decisions are being made by the Scottish Government. This is central in devolution where there is a tight legal framework of which powers can be exercised.   Every administration – including Salmond’s – has relied on this.

This is a particular problem for the ongoing controversy of an “indyref2” Bill being proposed in Holyrood without the explicit legal authority of Westminster. Such a law would require the explicit support of the incoming Lord Advocate. Wolffe whilst in office never issued any comment on this question. 

MacAskill’s motion demands that the UK Government changes the devolved settlement to alter the role of the Lord Advocate in Scotland which is formally correct in law. It is unlikely to generate much more than publicity as currently it only has the backing of the other Alba MP.

But such rushed requests of Westminster ignore the fine balance of human rights and accountability which would need to be replicated before this complex role could be abolished. The appointment of a new Lord Advocate could be the opportunity for such reform to be debated.