The Unpolitical Lord Advocate (Vol. 2)

It became easy to forget, when the SNP were first elected in 2007, that they entered government with no experience whatever of rule.  For the most part, we are told, Nationalist ministers took to their new tasks with gusto. As pelicans to water were Alex Salmond and his comrades to St Andrew's House on Calton Hill. 

Inevitably, however, you make mistakes on your first try, and the SNP were no exception. But the greater, and more unforgivable, failure is stubbornly persisting with those mistakes after experience has taught you the error of your ways.  The appointment of Frank Mulholland and Lesley Thomson as Law Officers in the SNP's second, majority term represents one such blunder.

This is no harm to Mulholland and Thomson personally. I know neither of them, but I'm sure they're folk with qualities and talents. Responsibility sits with the character who appointed them, and his refusal to tack away from a failed commitment. In August 2012, I published a piece, examining the Lord Advocate's conspicuous attendance at Cabinet meetings, despite the fact that Salmond announced in 2007 that his Law Officers would be "independent of politics" and outside of his cabinet.

Today, a Sunday Herald exclusive quantifies that attendance with official statistics. According to a Scottish Government spokesman, Mulholland has attended the Scottish Cabinet 45 times since 2011, roughly 50% of the time.  No mention is made of the Solicitor General, Lesley Thomson, but the photographic evidence from 2012 and this summer indicates that she too has sat in on the highest level of political discussion in this country.

Is this a problem? And if so, why? The Scottish Law Officers have two distinct roles. On the one hand, they hold office as prosecutors, the independence of whom from political influence is a paramount constitutional norm in this country.  On the other, the Lord Advocate is also the Scottish Government's chief legal adviser. Reconciling the two roles is challenging. The first demands a certain distance from the other parts of government, the second suggests an intimate familiarity with them.  

In England, they don't bother trying to give one person two such ill-fitting hats. South of the border, the Director of Public Prosecutions heads up the Crown Prosecution Service, while the Attorney-General, Solicitor-General and Advocate-General are the UK Government's Law Officers.  The current Attorney and Solicitor are legally-trained Tory MPs, with Jim Wallace advising the Westminster government on Scots law from the Lords. This is a bit of a simplification. The Attorney's coat buttons up around a bewildering and idiosyncratic range of duties. He may refer sentences to the court where he believes the penalty imposed is unduly lenient, has a role in contempt of court prosecutions - and so on - but there is a rough division in functions.

Not so in Scotland.  Historically (which is to say, before 2007), the position of Lord Advocate has been a party gig for a legally-trained but sympathetic fellow traveller, Labour or Tory. Labour's Justice spokesman, Graeme Pearson, foolishly seems to have pitched this history down the memory hole.  In today's Sunday Herald piece, he observes:

"The figures reveal a stunning disregard on the part of Alex Salmond for his own declared intention to keep the Lord Advocate out of politics. The absolute need to maintain a separation of powers in this regard is being ignored at will by the SNP Government, a government imbued with a desire to centralise and control."

While Pearson is no doubt right about the first part, and Salmond has quietly reneged on his commitment, Pearson's second comment is silly, excessive and ignorant of the history both of his party and of the position. Was it a scandal when Labour-supporter Colin Boyd held the role between 2000 and 2006, habitually attending Jack McConnell's cabinet? Was the Labour-Liberal coalition thereby "imbued with a desire to centralise and control"? I imagine he thought, and would argue, not. So what's the difference? Secondly, because of his duties as the government's chief legal advisor, the very position of Lord Advocate prohibits the "absolute" separation from politics which Pearson demands and requires. Good luck finding any lawyer who can work that conjuring trick.  He may have been misquoted or glossed, but the Sunday Herald suggests:

Labour MSP Graeme Pearson said there was an "absolute" need to maintain a "separation of powers" between the executive and the legislative arms of government.

As critiques go, this is just incoherent. The Lord Advocate is a member of the executive branch of government, but not of the legislature. Salmond, as First Minister and an MSP, is part both of the legislature and the executive. How all this relates to the Lord Advocate's position and its independence, I haven't the foggiest, but it may be a bungling effort to underline the importance of an independent prosecution service. I'd sympathise with that.

But Pearson's basic logic is wrong, merely amplifying Salmond's misjudgment of 2007. Political law officers are no bad thing for a government to have in its stable.  Given traditional conceptions of their role, civil service legal advice can only take you so far. Cabinet colleagues may suspect their officials are producing quibbling legal havers to block a policy they're hostile to for other reasons. A politically-sympathetic and trusted law officer can help to allay these tensions, distinguishing the real legal hurdles from paper walls.

They can also lend a hand to the tiller to try to resolve legal problems which a policy might face, not as an indifferent advisor, but as a colleague who shares your political goals, striving towards the same destination. In so doing, they can be an important voice for the rule of law in the highest circles of politics. This is not to be sniffed that.

The problem here isn't that Alex Salmond hasn't upheld his "depoliticisation" policy: it's that it was the wrong approach to the role which Law Officers can and should play in a government in the first place.  As I argued back in 2012, the problem with Mulholland's position is not that he is a political partisan. It is that his political participation and partisanship occurs under the guise of being a simple functionary, and that the government have foolishly failed to be transparent about the extent to which they've found it necessary to reverse Salmond's commitment to the exclusion of Law Officers from his cabinet. If 2007 has proved to be a blunder, reinforcing that blunder after the 2011 election was even less wise.

There are practical ways to resolve these tensions, and to answer Pearson's oversouped fears. Within the existing legal framework, the duties of the Lord Advocate and Solicitor General could be distinguished more sharply, the first the independent head of the Crown Office, the second fulfilling a more visibly political, legal-advisory role to the Scottish Government, or vice versa. 

Alternatively, we might take a third look at the Scotland Act, adding a third Scottish Law Officer to the Lord Advocate and Solicitor-General, to relieve them of their legal-advisory role to the Cabinet, while ensuring that Cabinet consistently benefits from sound legal advice.  Or we could exclude the Lord Advocate from the cabinet, and the Solicitor General from the Crown Office, leaving the latter solely responsible for the provision of legal advice to the Scottish Ministers.  If we vote Yes in 2014, all of these will become constitutional questions, and choices, for the new state.

It is necessary for prosecutors to be independent. It is also necessary for Ministers to receive problem-solving legal advice from a sympathetic but hard-headed source. That's the conundrum of the Lord Advocate. As today's Sunday Herald headline suggests, the current uncomfortable, unhappy and increasingly compromised "depoliticisation" is not serving Scotland or Scottish Ministers well.