SCOTLAND’S Lord Advocate has been accused of being “absent without leave” in the Salmond row as a former UK Supreme Court judge said it was disturbing how the nation’s criminal justice system was being called into question.

On Wednesday, James Wolffe QC, Scotland’s top prosecutor, told MSPs he was out of the loop when his department urged the censoring of the former First Minister’s evidence to a Holyrood inquiry.

The Lord Advocate insisted he had not been consulted on the matter and only got a copy of controversial letter written by the Crown Office, the department he heads, to MSPs after it was sent to the Scottish Parliament.

Mr Wolffe declined to “get into the substance of the issues” in case he breached the court order, which was made to protect the anonymity of the complainers, and stressed the Crown Office had not sought to limit the evidence to the Holyrood committee.

“Ultimately,” he noted, “it’s for the parliamentary authorities to determine what they may lawfully publish within the bounds of the order laid down by the court.”

But Lord Falconer, the Shadow Attorney General at Westminster, questioned why the Lord Advocate had not got directly involved.

The Labour peer said: “What has happened in relation to the Salmond evidence, is it was put in…unredacted then officials, not the Lord Advocate, wrote to the Scottish Parliament and said take out bits; bits that happened to be embarrassing to the First Minister. The Lord Advocate has come along and said to the Scottish Parliament:’ Nothing to do with me.’

“I cannot think of an occasion where you need the authority of the minister responsible for the rule of law in the Government of Scotland to rule, to say where it was appropriate to take out bits that were embarrassing for the First Minister; it might be legitimate to protect the identity of the complainants.

“But where was the Lord Advocate when this massive constitutional decision had to be taken?”

He went on: “I reach the conclusion that the Lord Advocate is absent without leave, at the moment. I reach the conclusion, had the Lord Advocate been properly engaged and indicated he was either confident the redactions were okay or made sure there weren’t improper redactions, then the Scottish Parliament would have been able to make public the whole submission…”

Asked why the Scottish Parliament was not sovereign in this matter and could decide not to take instruction from Crown Office, the former Lord Chancellor declared: “It can. There’s no reason why it can’t.”

Asked if it was, therefore, the fault of the Parliament that the evidence Mr Salmond wanted to be made public was not being made so, the Labour peer told BBC Radio 4’s Today programme: “Exactly, the position is that it is for the Parliament to be responsible and not to do anything that might identify the complainants in the criminal trial against Alex Salmond.

“What happened in this case was not a command from the Crown Office, which is the prosecuting authority in Scotland, it was a letter making suggestions, which the Parliament could comply with or not.

“The Parliament, quite rightly, will give great respect to the Crown Office in Scotland. The iniquity here is the Lord Advocate not stepping up to the plate and giving his authority to this letter or not as the case may be, if he thought it was simply a device to protect the reputation of the First Minister.”

Fellow Scot, Lord Hope of Craighead, told the programme: “The most disturbing thing of all is the fact that the integrity of Lord Advocate, Scotland’s senior law officer, and the criminal prosecution system of which he is the head, is being called into question.

“I know the Lord Advocate very well, I have known him not to doubt his integrity but somehow the system has been called into question and in any well-organised society that should never happen and the prosecution system should be seen to be totally independent, impartial and utterly trustworthy. That is the problem that has been created by the events we are facing just now.”

The former Deputy President of the Supreme Court said the publication of Mr Salmond’s evidence, its withdrawal and then appearance in a redacted form was a “very strange state of affairs”.

“I can understand Alex Salmond’s exasperation on the one hand and Nicola Sturgeon’s dismay…at the extent to which the Crown Office has been called into question.”

The crossbench peer explained how a court order preventing the identity of complainers was a “normal state of affairs” and “perfectly orthodox”.

He noted: “What is very strange is that from the Crown Office these documents came out without the redaction and the information is now in the public domain because many people have seen these documents in full and yet in the committee proceedings today they will be in a redacted form and Alex Salmond will not be able to refer to the details…

“But it is a very strange state of affairs, which I find disturbing. I don’t know the reasons for it, I’m not a participant in these affairs, but, at the background of it, there is a feeling of distrust across the system, which is very debilitating and should never happen in a modern society.”

Stephen Gethins, a former SNP MP, who was an aide to both Mr Salmond and Ms Sturgeon, emphasised how the independence of Scotland’s legal system was fundamental to society and that a key issue in the Salmond row was about protecting the rule of law and not about protecting politicians.

He said: “One thing I have noticed over the past few days is you’ve had the Law Society of Scotland, the Faculty of Advocates, these are independent legal organisations in Scotland having to remind politicians of the independence of our legal system, that’s a key, fundamental part of our democracy. The lawyers have to make difficult decisions and they should not be interfered with in terms of the politics of this. I have been really disappointed by hearing some opposition politicians trying to make this case…”

But when it was pointed out on Today how one of those concerned was Lord Hope, a former Supreme Court judge, who had suggested what had happened at Holyrood could not happen at Westminster, the former MP said: “It’s a critical[point]…legal officers do not speak for the SNP, they speak for the Scottish Government.

“The Government has a legal responsibility to keep to the law. What we’re seeing at the moment are things like the Law Society of Scotland having to tell people that we have an independent legal system and we have to respect the rule of law.”

On the point about what was happening at Holyrood could not happen at Westminster, Mr Gethins noted: “Well, at Westminster you have Government ministers who talk about breaking international law, who have to be taken to court just to let Parliament sit, who rip up agreements with partners just after[they signed them].”

Asked if the Salmond row was essentially about the proper functioning of democracy, Mr Gethins replied: “No. It’s about the rule of law and respecting the rules.

“Having public discourse and holding ministers to account for what they do is entirely appropriate and we should do it…The Faculty of Advocates and the Law Society find themselves astonished that they have had to step in and talk about protecting the integrity of the rule of law; this is not about protecting politicians.”

Asked if Mr Salmond was right there had been a conspiracy and people were out to get him, his former aide said: “He is entitled to put forward his case. There will be time today. Alex Salmond will do it in the robust and thorough way he always does and I hope they have time to go through it in a thorough way.

“If there is some vast conspiracy, I’m hearing from some, then it must be a conspiracy that involves the police and the legal officers, and that’s why you’re seeing academics wondering why we are talking about our legal system being controlled by politicians…

“These are really serious allegations and I hope we get to the bottom of them but I would not want to see us undermining our legal system in the process of doing it,” he added.