HeraldScotland:

It seems like an entire lifetime but it was only six weeks ago that Scottish politics was riven with cataclysmic rhetoric on the future of the First Minister and the failings of the Scottish state as the Holyrood investigation into the Scottish government complaints policy reached its climax.

Central to this was perhaps surprisingly the unique constitutional role of the Lord Advocate, a position that has existed in Scotland for centuries. 

Alex Salmond had claimed that as part of the broader Scottish Government the Lord Advocate had been part of a “malicious and concerted effort" to damage him. 

As the Scottish election trundles on, a picture of calm compared to the events in March, will these sharp debates had any lasting effect? Following May's election, will the Lord Advocate's role fundamentally change? 

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It is worthwhile going through each Holyrood party's manifesto to see what is being proposed. Central to the controversies of early 2021 was the dual role of the Lord Advocate as chief legal advisor to the Scottish Government and the nominal head of the Crown Office in charge of all criminal prosecutions. Despite this being the arrangement since devolution was established decades ago the implication was that this role was open to too much potential conflict. 

Perhaps surprisingly given the level of the rhetoric from Ruth Davidson within the Scottish Parliament the most silent policy document on this issue is the Conservatives. They only make a semi-cryptic reference to recent events by stating that they would establish a Commission to “improve the operating of the Scottish Parliament and to strengthening its role in scrutinising the Scottish Government.” There is no mention at all of the Lord Advocate. 

Scottish Labour who in the past formed governments with the Lord Advocate playing a role are also a little coy on their approach. Anas Sarwar in an interview immediately following his election as leader stated that personally he believed the role should be separated. However their manifesto gives little detail. It mentions it almost in passing “splitting the dual role of the Lord Advocate” and instead goes on to speak in more detail of reviewing the Crown Office in general. 

HeraldScotland: Dr Nick McKerrellDr Nick McKerrell

Much more detail is given in the SNP’s programme. Unsurprising as they are the favourites to form a government following the election but ironic as it was their party that was at the centre of the controversy around the Lord Advocate. 

They promise to “consult" on the joint role and that the Lord Advocate will only attend essential Scottish Government meetings. It is also a little defensive stating that the appointment of the position will continue to be “non party political". A position that they say was not reflected in non-SNP governments. For example, the first Lord Advocate 

Elish Angiolini in an SNP administration had also served under the previous Labour/Liberal executive. 

Despite having a pretty radical plan for Scotland the Scottish Greens make no mention of reform in this area of the Constitution. 

It is actually the smallest party in the Parliament the Liberal Democrats who give the most details on their plans. They call for the immediate creation of a public prosecutor separated from the Lord Advocate, who would remain as a legal advisor. Further they would appoint a non-Scottish prosecutor to investigate the Crown Office to make it more “effective". 

In summary it seems that the high tide of debate around the Lord Advocate has subsided significantly during the election. Whether the current holder of the role James Wolfe continues in post will be a matter for the new Government. But in general there are no strong clear policies on the future of this historical role although it seems likely that some sort of commission or review may emerge.

This seems to suggest that the rhetoric of earlier this year was indeed a little overheated.

Dr Nick McKerrell, Senior Lecturer in Law, Glasgow Caledonian University