Wednesday, 1 June 2016

James Wolffe becomes Scotland’s most senior law officer - and is urged to look into Lockerbie case

[This is the headline over a report in today’s edition of The National. It reads as follows, accompanied by a legal commentator’s analysis:]

The Dean of the Faculty of Advocates James Wolffe QC is to become Scotland’s most senior law officer in succession to Frank Mulholland QC who is stepping up to be a judge.

First Minister Nicola Sturgeon has recommended the appointment of Wolffe as Lord Advocate and senior advocate depute Alison Di Rollo as Scotland’s new law officers, the latter becoming Solicitor General.

News of Wolffe’s recommendation was welcomed by Professor Emeritus of Scots Law at the University of Edinburgh Robert Black who has urged him to look into the Lockerbie bombing case. The Scottish Criminal Bar Association has also welcomed him.

Di Rollo succeeds Lesley Thomson, who was appointed to the post in 2011, and who has informed the First Minister that she wishes to pursue new challenges.

The appointments will be made by the Queen on the recommendation of the First Minister, with the agreement of the Scottish Parliament. The appointments, if approved, will complete the First Minister’s newly-appointed ministerial team.

The Lord Advocate is a Minister of the Scottish Government and acts as principal legal adviser, but decisions by him about criminal prosecutions and the investigation of deaths are taken independently of any other person.

The Solicitor General is the Lord Advocate’s deputy. She assists the Lord Advocate to carry out his functions and is also a Minister of the Scottish Government.

First Minister Sturgeon said: “I am extremely pleased to recommend the appointments of James Wolffe and Alison Di Rollo as Scotland’s senior law officers.

“James has an outstanding legal background and extensive experience at all levels, including the House of Lords, the Judicial Committee of the Privy Council, the Supreme Court of the United Kingdom, the European Court of Human Rights and the Court of Justice of the European Union.

“Alison led the work of the ground-breaking National Sexual Crimes Unit (NSCU) for three years, having previously held the role of deputy. Her outstanding leadership in this most sensitive of areas has inspired confidence in all connected to it.”

James Wolffe said: “I thank the First Minister for nominating me to the office of Lord Advocate. If I am appointed, it will be a great privilege to serve Scotland in that role.”

Alison Di Rollo said: “I am both delighted and honoured to be nominated for this role by the First Minister and I am looking forward to working with James in his new role.”

The First Minister thanked both Frank Mulholland QC and Lesley Thomson QC for their service.

She said: “In his time as Lord Advocate, Frank has made a substantial contribution to both the law and to Scottish society. The creation of the National Sexual Crimes Unit was just one example of the increased specialisation of the Crown Office that Frank Mulholland presided over.

“In her role as Solicitor General, Lesley’s work, particularly around domestic abuse, was pivotal in moving towards a system that instils confidence in victims of abuse and ensures that their abusers are held to account. I thank both Frank and Lesley for their dedicated service to the Government, to justice and to Scotland as a whole.”

Prof Black said on his blog: “It is to be hoped that one of the first priorities of the new Lord Advocate will be to consider all of the evidence now available about the Lockerbie case and the conviction of Abdelbaset Megrahi.”

ANALYSIS: Andrew Tickell 

Wolffe has what is needed to help Sturgeon in legal rough and tumble

The Lord Advocate is much more than a public prosecutor. Scotland’s chief law officer heads up the Crown Office and Procurator Fiscal service, its independent prosecutors indicting and trying those accused of crime in the public interest. But his coat buttons up tight over a range of other equally important duties. The Lord Advocate is also the Scottish Government’s principal legal advisor – the legal brain in the cabinet, who – confidentially, sympathetically – helps its ministers navigate the increasingly tricky and complex legal rules which constrain their choices. Compared to the blood and thunder of indicting wrongdoers and dishing out punishment to the guilty, his advisory role is unsexy. It catches no eyes and commands no headlines. Most of it, ye and me will never hear about. But it is absolutely essential part of modern government.

Holyrood must steer its legislation safely through the reefs and shoals of European Union law, the European Convention on Human Rights, and a sometimes knotty devolution settlement. Any major, controversial piece of legislation is always vulnerable to a legal challenge.

Land reform, tobacco vending machine bans, minimum alcohol pricing, the Named Persons provisions – all have been subject to well-organised and well-resourced challenges in our courts.

If I was the Scottish Government – so exposed to all these legal challenges to its agenda – I’d want the best legal brain on my side, counselling me, putting my side of the story if things get tough.

Nicola Sturgeon’s nominee – James Wolffe QC – has these qualities in spades. But the pick represents a clear departure for Sturgeon, who has broken with the approach adopted by her predecessor in Bute House.

This is to be welcomed.

When he first took office in 2007, Alex Salmond took the unprecedented step of leaving Jack MacConnell’s Lord Advocate in post. Elish Angiolini – a career prosecutor and solicitor – remained in office until the Holyrood election of 2011, to be replaced by her then Solicitor General and fellow career Crown Office prosecutor, Frank Mulholland. Mr Salmond was keen that his law officers should enjoy an unprecedented “independence from the political process”, establishing themselves as “independent of politics”.

In the event, Mr Salmond discovered that an independent prosecutor can be politically useful. Mr Muholland intervened regularly in political debates during his tenure. But historically, the law officers were explicitly political appointments. The garlands went to party loyalists: folk up to the job, with the requisite legal training, politically sympathetic to the government’s agenda. The Lord Advocate and the Solicitor General were partisan legal problem-solvers who could be relied on to tell legal truth to political power around the privacy of the Cabinet table, who did a bit of prosecuting on the side.

The idea that the law officers should be career prosecutors is a recent – and perhaps not altogether successful – innovation. It was Jack MacConnell who promoted Elish Angiolini to the role. The first woman to occupy the post, Strathclyde-educated Angiolini was a world away from the “Edinburgh legal fraternity” and the members of the Faculty of Advocates, who had filled the post for centuries. Her appointment prompted predictable rhubarbing from dark and dusty corners of Parliament House.

But it wasn’t all sour grapes, snobbery and personal disappointment. Some asked more substantive questions. Could career criminal lawyers effectively advise the governing on all the tough public law issues the government faces? You can’t be an expert in everything. Since 2007, the SNP has faced countless legal headaches, but its law officers have been drawn from a fairly narrow professional range. Mr Wolffe’s appointment suggests the SNP have learned from these bruising experiences before the courts, and are reckoning much more seriously with the legal rough and tumble which the Government will – inevitably – face this session.

This welcome appointment leaves Nicola Sturgeon’s government legally fortified.

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