Judges call for Lord Advocate to be stripped of powers

In the Greshornish House Accord of 16 September 2008, Professor Hans Köchler and I said this:

"It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998."

It appears that the judges of Scotland's supreme court have come to share this view. In today's Sunday Herald it is reported that in their submission to a commission set up to consider how the devolution settlement between Scotland and the United Kingdom could be improved, the judges recommend that the Lord Advocate should cease to be the head of the public prosecution system and should act only as the Scottish Government's chief legal adviser. The Sunday Herald's article reads in part:

'In their report, the judges say the Lord Advocate's dual roles have generated scores of [human rights] challenges, gumming up the justice system. The opportunity "to challenge... virtually any act of a prosecutor has led to a plethora of disputed issues, with consequential delays to the holding of trials and to the hearing and completion of appeals against conviction." (...)

'The judiciary offer three possible solutions to the problem, but do not come down in favour of any particular one.

'They write: "Her responsibilities as the public prosecutor could be transferred to an independent Director of Public Prosecutions' in Scotland, who would be responsible for the prosecution system, but who would not be a member of the Scottish Executive (sic).

"Such a change would rob the Lord Advocate of most of her functions, but would leave the Scottish Executive with a Lord Advocate who was a general legal adviser to the Executive."

'They also suggest Westminster could amend the Scotland Act to explicitly exempt the Lord Advocate's actions as a prosecutor from compliance with ECHR [European Convention on Human Rights].

'A third possibility would be changing the law on criminal appeals, although they warn "such a radical nature would be likely to generate considerable controversy".'

The full article can be read here.

[I am grateful to Tony Kelly for drawing my attention to http://www.commissiononscottishdevolution.org.uk/engage/submissions-received.php where the judges' full submission can be accessed ("Judiciary in the Court of Session" just over half way down the list headed "Miscellaneous Submissions").

A letter from the Lord President, Lord Hamilton, clarifying the judges' position is published in Scotland on Sunday's 9 November edition. It can be read here.]