Ministers to consider new justice changes in wake of SNP finance probe

The pre-consulatation work is being carried out by Malcolm McMillan, a former chief executive of the Scottish Law Commission, and is examining the functions of the head of the prosecution service and government's Law Officers in other countries. 

Under the Scotland Act 1998, the Lord Advocate has two roles – the head of the Crown Office in Scotland and the Scottish Government's top legal adviser.

READ MORE: SNP to abolish not proven verdict and set up sexual offences court

Elsewhere, including in the Republic of Ireland, the posts of head of the prosecution service and the Attorney General - the chief legal advisor to the government - are held by different people to avoid any possible conflict of interest or perception of such.

The Attorney General in Ireland used to act as both the chief legal advisor to the government and head of the country's prosecution service but the roles were split under legislation passed in 1974.

The Scottish Government have told the Herald on Sunday that the law officers operate "entirely independently" as they undertake "their prosecutorial functions" while the Crown Office pointed out that responsibility for the investigation into SNP finances has been handed to independent prosecutors with no involvement of either the Lord Advocate or the Solicitor General.

Asked about plans to review the Lord Advocate's roles, a Scottish Government spokesman said: “As protected within the Scotland Act, the Law Officers operate entirely independently of any other person as they undertake their prosecutorial and investigation of deaths functions.

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“The consultation on the functions of the Law Officers is proceeding as planned. Development of the consultation is to be informed by an initial phase of expert research, which is currently underway.”

He added: "The expert research is being undertaken by Malcolm McMillan, former Chief Executive of the Scottish Law Commission, who has formerly worked as a solicitor in the Scottish Government Legal Directorate.

“This research will ensure a detailed baseline understanding of the distinct roles and functions of the Law Officers and will provide information on how the functions of Law Officers operate in other countries.” 

The dual nature of the Lord Advocate's position first came under public examination following the prosecution of Mr Salmond for alleged sexual offences. The former First Minister was acquitted of all charges in March 2020 following his trial at the High Court in Edinburgh. 

He told a subsequent inquiry in Holyrood into an unlawful probe by the Scottish Government into harassment allegations made against him that the police investigation was part of a political plot against him.

His allies called for the Lord Advocate's roles to be split, while opposition parties in Holyrood also back reform while recognising the integrity of the individuals holding the roles.

Ms Sturgeon said two years ago she would investigate separating the dual roles of the Lord Advocate as MSPs unanimously backed Dorothy Bain KC being named Scotland’s Lord Advocate.

Police officers about to enter the SNP's headquarters in Edinburgh last month.  Photo PA.

However, the former First Minister gave no update on the work before she resigned in March and was succeeded by Humza Yousaf.

Last month saw police arrest Ms Sturgeon's husband Peter Murrell, former SNP chief executive, and the party's treasurer Colin Beattie, amid a long running investigation into the SNP finances. Both men were released without charge pending further investigation. The home Ms Sturgeon shares with Mr Murrell was searched by the police along with the SNP headquarters in Edinburgh.

SNP politicians and former aides have become increasingly critical of the police investigation.

Last week Murray Foote, the SNP’s former spin doctor, described the police investigation as a “grotesque circus”.

In his first intervention since resigning last month in a row over inaccurate SNP membership numbers given to the press, he said he would be willing to gamble that no charges would be brought.

Mr Foote speculated that Operation Branchform, the investigation’s codename, was a “wild goose chase”.

In the wake of Mr Foote’s remarks, the MSP James Dornan, who represents Ms Sturgeon’s neighbouring constituency for the SNP, also condemned Operation Branchform.

“Seriously, who was in charge of this fiasco? Who ordered it to happen and, if or when we find that nothing untoward happened, then who will be held accountable?” he wrote on social media. “This public parody of policing would never have happened to a PM or ex-PM so why was it okayed in Scotland?”

After Mr Murrell’s arrest last month a senior SNP official said police behaviour in the investigation was “disproportionate” and “stinks”.

Opposition parties last night welcomed the Scottish Government's decision to proceed with the consultation.

Scottish Lib Dem justice spokesman Liam McArthur said: “It has been clear for some time that the role of the Lord Advocate needs to be split to end the perceived conflicts of interest. 

“This has never been a reflection of the integrity of the incumbent, but rather a recognition that it is less than ideal for decisions over prosecutions to be taken by the same person responsible for giving the First Minister legal advice. 

“This is as true now during the SNP finance probe as it was during the investigations into allegations of harassment by the former First Minister.

“An independent Director of Public Prosecutions to run the Crown Office and Procurator Fiscal Service would reassure the public that there is no conflict between these two roles. 

“Despite having the power to make these changes, Nicola Sturgeon chose not to act. It now falls to Humza Yousaf to do so.

Nicola Sturgeon speaking to journalists in Holyrood last month.  Photo PA.

"Having consistently argued for reform, Scottish Liberal Democrats welcome this move to consult. Any consultation and research undertaken, however, must be both comprehensive and thorough so that robust reforms can be put in place."

Scottish Conservative shadow justice secretary Jamie Greene: “This issue is more relevant than ever given the recent arrest of senior SNP figures and the ongoing police investigation into the SNP’s murky finances.

“It is hardly surprising then that a consultation on splitting the dual role of the Lord Advocate remains in the very early stages. That painfully slow lack of progress simply isn’t good enough when Nicola Sturgeon committed to looking at this two years ago."

He added: “The scandal surrounding the SNP cannot be used as a further excuse by the new SNP justice secretary to kick the can down the road even further on this urgently needed reform.”

Ms Bain succeeded James Wolffe KC as Lord Advocate in 2021, a position Ms Sturgeon described as “crucial to the rule of law in Scotland”.

Ruth Charteris became the new Solicitor General, taking over from Alison Di Rollo, alongside Ms Bain, in what Ms Sturgeon labelled an “outstanding and formidable team”.

A spokesman for the Lord Advocate said: “Dorothy Bain KC is not politically affiliated to the SNP administration and was appointed with the unanimous approval of the Scottish Parliament.

“In a distinguished legal career she has advised and represented clients across a broad range of issues, and she has done so with unfailing integrity and professionalism.

“Her independence is explicitly protected by law and she exercises her authority as Lord Advocate independently of political pressure, and indeed of any other person.

“To suggest otherwise is an unacceptable slur on her, and on the lawyers in public service with the Crown Office and Procurator Fiscal Service who share her dedication to upholding the rule of law.”

In relation to the SNP probe, a spokesman for the Crown Office and Procurator Fiscal Service said: “As is standard practice in any matter regarding politicians, this is being dealt with by independent prosecutors without the involvement of the Lord Advocate or Solicitor General.”

Ms Sturgeon confirmed to Holyrood in June 2021 plans to hold a consultation on splitting the Lord Advocate's roles warning of the potential of requiring a long process including “possible amendment to the Scotland Act”.

She said Ms Bain and Ms Charteris are “both individuals of the highest ability and integrity”.

SNP MP Joanna Cherry told the Commons in July 2021 that "all that's really needed" is for MPs to give the Scottish Parliament the power to alter the role of the Lord Advocate by amending the Scotland Act.

Ms Cherry said Westminster could "pass a bill amending the Scotland Act so the role of the Lord Advocate could be revisited by the Scottish Parliament".

The then Scotland Office Minister David Duguid told MPs that the UK Government wants to see the Scottish Government "take the lead" and see the SNP's plan first.

He said: "Any formal separation of the responsibility would require legislation. Whilst the UK Government has the power to bring forward legislation to make this change, in practice we would want to ensure the Scottish Government has first put their proposals to the Scottish Parliament for scrutiny.

"Only once these proposals were agreed in principle in the Scottish Parliament, would we expect the Scottish Government to make a formal representation to the Secretary of State for Scotland, as custodian of the devolution settlement - and then the UK Government would consider the next steps."

Last month the Scottish Government published the Victims, Witnesses and Justice Reform (Scotland) Bill which propose major changes to the criminal justice system.

Under the legislation, a specialist sexual offences court would be established and a pilot set up of a single judge without a jury to preside over trials for cases of rape and attempted rape.

Further proposed changes would see the scrapping of the not proven verdict, a reduction in the number of jurors from 15 to 12 and the introduction of lifelong anonymity for victims of a sexual offence.