JUSTICE: SNP “kicking can down the road” on reform of Lord Advocate role

By Bill Heaney

The SNP have been accused of “kicking the can down the road” on reforming the dual role of the Lord Advocate, after justice secretary Keith Brown confirmed the consultation process has yet to start.

Shadow justice secretary Jamie Greene believes the current situation – in which the Lord Advocate doubles up as both the head of the Crown Office and the Scottish Government’s chief legal adviser – is “untenable”.

Justice Secretary Keith Brown, Lord Advocate Dorothy Bain and Conservative Shadow Justice spokesperson Jamie Greene.

He insists that recent high-profile controversies – such as the Alex Salmond inquiry and the Supreme Court indyref case – highlight the conflict of interest in the two roles, which the Scottish Conservatives, among others, think should be filled by two different people.

But, despite a long-standing SNP commitment to consult on reforming the Lord Advocate’s roles, Keith Brown confirmed in a written answer to Jamie Greene that little or no progress has yet been made.

Jamie Greene criticised the lack of urgency as “unacceptable”, claiming the current incumbent, Dorothy Bain, is “hopelessly – and unfairly – compromised” as things stand. 

Jamie Greene MSP said: “Keith Brown’s response is desperately disappointing.  We need this reform now – yet the justice secretary is kicking the can down the road.

“The consultation doesn’t look close to starting and he’s now talking about requiring the full lifetime of this parliament to deliver.

“It’s not good enough. The current dual and conflicting role of the Lord Advocate is untenable.

“The Lord Advocate is hopelessly – and unfairly – compromised by being both head of the Crown Office and public prosecutions, as well as being the chief legal adviser to the Scottish Government.

“This was demonstrated during the Alex Salmond inquiry and more recently when Dorothy Bain had to lead Nicola Sturgeon’s doomed Supreme Court bid to hold another independence referendum, despite reportedly having grave reservations about its legal merit.

“Nicola Sturgeon made a public commitment to look at reforming this dual mandate, so these delays Keith Brown is now talking up are unacceptable.”  

Nicola Sturgeon and Alex Salmond with his lawyers at the Court of Session.

A copy of the question and written answer is copied below (link): 

7 December 2022

Index Heading: Education and Justice

Jamie Greene (West Scotland) (Scottish Conservative and Unionist Party): To ask the Scottish Government whether it will provide an update on the current (a) timescales, (b) plans and (c) legislative changes it plans to propose to reform the dual role of the Lord Advocate, in their capacity as head of the Crown Office and Procurator Fiscal Service and as a minister in the Scottish Government and its principal legal adviser, in line with its commitments to do so.

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Keith Brown: The Programme for Government published in September 2021 covered this Parliamentary session running up to March 2026. Within it, there is a commitment as follows:

‘The Scottish Government’s law officers, amongst other roles, act as the head of the independent prosecution service and as members of the Scottish Government. We will consult on whether the prosecution and government functions of the law officers should be separated.’

Work is continuing to progress towards a Scottish Government consultation. Development of the consultation will be informed by an initial phase of expert research, which is currently underway. This research will ensure a detailed baseline understanding of the many distinct roles and functions of the Law Officers and will provide information on how the functions of Law Officers operate in other countries.

Top of page picture: Court of Session in Edinburgh. Picture by Bill Heaney

One comment

  1. If I had the money to waste, I would go to the court of session to prove the mental health act is not human rights compatible. The Lord Advocate’s job was to ensure it is human rights compatible but they didn’t bother.

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