Jackie Baillie has written to the Scottish Government’s Independent Advisers on the Ministerial Code urging them to consider investigating a potential breach of the Ministerial Code by the Lord Advocate, Dorothy Bain.
Scottish Labour’s Deputy Leader raised questions about whether the Lord Advocate misled Parliament, whether information was improperly disclosed to the First Minister, and whether appropriate safeguards were in place to prevent political advantage.
Full copy of letter below:
I am writing to you regarding the recent statements and actions of the Lord Advocate, Dorothy Bain KC, in connection with the prosecution of Peter Murrell and related communications with the First Minister and SNP advisers.
A core requirement of the Ministerial Code is that Ministers provide Parliament with honest and accurate information, and that any inadvertent inaccuracies are corrected at the earliest opportunity. I am concerned that the Lord Advocate’s handling of this matter raises serious questions about the accuracy of what was said to Parliament and whether the First Minister and his political advisers received access to prosecutorial information that was not available to the public and media, creating a potential political advantage.
I am in no way seeking to question the Lord Advocate’s record as a prosecutor or detract from her accomplishments. However, the public do deserve answers about this worrying incident.
It has been reported that the Lord Advocate disclosed to John Swinney information about the prosecution that was not in the public domain, and that this information was shared with SNP advisers. That is profoundly troubling given the constitutional sensitivity of the Lord Advocate’s dual role and the need to maintain confidence in the independence of prosecutorial decision-making from political interests.
My concerns are compounded by what the Lord Advocate told Parliament. She stated that, from the point at which an indictment is served, “there is no limitation on its terms being made public.” However, after the Lord Advocate had notified the First Minister, the Crown Office position communicated to the media was the opposite in substance: “The indictment is not a public document until it is presented in open court.” These statements cannot both be correct. If the indictment was not a public document at that point, then providing its contents to the First Minister and SNP advisers would plainly be a disclosure of non-public information. If the Lord Advocate’s statement to Parliament was inaccurate, it should be corrected promptly.
There are further serious questions about process and propriety. If the Lord Advocate was recused from this matter, why was she corresponding with the First Minister about it at all? If the communication was said to be for the First Minister only, why was information shared with SNP advisers, and what steps were taken to control onward disclosure? And if the Crown Office would not provide the same information to the media on the basis it was not public, how can it be justified that the First Minister and SNP advisers were placed in a privileged position?
This goes to the heart of public confidence: confidence that prosecutions are handled without fear or favour; confidence that no accused person, government figure, or governing party is treated differently.
The victim of this matter is not any individual politician, but the integrity of the system and those who have a right to expect that Scotland’s institutions are not used in a way that advantages a governing party.
As Independent Advisers on the Ministerial Code, I would urge you to consider whether an investigation should be initiated into potential breaches arising from this sequence of events, including:
- whether Parliament was misled by the Lord Advocate’s description of the indictment’s status;
- whether non-public prosecutorial information was improperly disclosed to the First Minister and/or SNP advisers;
- whether appropriate safeguards and records were in place to prevent political advantage or the perception of it; and
- whether any failure to correct the record has compounded the damage to public confidence.
Given the seriousness of this issue, it is essential that transparency and candour are prioritised over political management. I would be grateful if you could provide the First Minister with independent, impartial advice on how this matter should be handled, including whether the Lord Advocate should correct the record and whether further steps are required to protect confidence in prosecutorial independence.
Kind regards, Jackie Baillie MSP
Deputy Leader of the Scottish Labour Party