Public appointment: public interest

Opinion that it is time to split the Lord Advocate's roles of government adviser and head of the prosecution service, and reform the method of appointment

The Journal, December 2006, page 9

I have a number of concerns over the method of appointment to the most important public office in Scotland, the Lord Advocate, and also the inherent question of bias that arises when the lines between a political and legal appointment become so fuzzed as to be indiscernible.

There are well established requirements for public appointments. Based on the Nolan Report, we have the Public Appointments and Public Bodies (Scotland) Act 2003 and a Commissioner for Public Appointments in Scotland.

The Commissioner, independent of both the Scottish Parliament and Scottish Executive, regulates, monitors, reports and advises on the way in which Scottish Ministers make appointments. This is above all to ensure that appointments are made in a way that is open, transparent and merit-based. The Commissioner has issued a code of conduct in accordance with her statutory obligations.

The code’s provisions include that the appointment decision will be based on the merit of the individual applicant; the process must not discriminate unlawfully against any group or groups; there will be an outline personal specification and appointment timetable; the appointment will be made public; and individuals and organisations will be informed of the opportunity. Each application must be treated in the same way as all others. The minister must not be actively involved until the selection panel has conducted interviews.

The First Minister effectively appoints the Lord Advocate with a nod from the Scottish Parliament. The Lord Advocate is a member of the Scottish Executive and I can understand the First Minister appointing someone in the same way as he sees fit to reshuffle his cabinet. This is essentially political. The Lord Advocate is also the government’s legal adviser and again I do not see any problem in the First Minister instructing whomever he thinks will be a good adviser.

But the Lord Advocate is also head of our prosecution service (and responsible for investigating deaths). The Scotland Act, s 48(5) states that any decision of the Lord Advocate in his capacity as head of the prosecution system must be taken by him or her independent of any other person. Yet this high public office is not subject to the open, public and meritorious system applicable to other such appointments. We therefore do not know whether we have the best person for the job, and in any event other very capable persons have been denied the opportunity to apply. Indeed it seems that the political dimension of the job takes precedence over such considerations.

This brings us to the extent to which political considerations, and therefore bias, permeate the role of the Lord Advocate. One Scottish daily newspaper, under the headline “Prosecution over Prestwick arms flights is ruled out”, recently reported that the Crown Office has decided not to prosecute the company used by the US government to transport laser-guided bombs through Scotland to Israel during the crisis in Lebanon. We are of course not to be fooled by the reference to Crown Office. The ultimate decision to prosecute rests with the Lord Advocate. Is she doing the bidding of her political masters? It would certainly be highly inconvenient for them to have such a prosecution in the run-up to the parliamentary elections in May, reminding us of wars where a Labour government’s role is the subject of debate and criticism. Or did the Lord Advocate as head of the prosecution service dispassionately examine the facts and come to such a decision in the public interest? We will never know, or be able to challenge such a decision, because as soon as we ask questions the Lord Advocate puts on her head of prosecution hat, making the decision unchallengeable.

The previous Lord Advocate advised the Executive that the Scottish Parliament could not competently pass a law on corporate culpable homicide. A challenge to a future prosecution on the basis that it was not legally competent would be a concern of the Lord Advocate as head of our prosecution service. However it was very convenient to his political masters who wanted the legislation to proceed in Westminster. The suspicion of bias was fuelled by the timing of that advice, just after it became too late for Karen Gillon MSP to proceed with her bill to have such a law passed – though the issue had been debated for several years. The question of corporate culpable homicide law will come back again. I wonder which hat the Lord Advocate will have on when she considers it.

So where does all this leave the office of the Lord Advocate as head of our prosecution system? In my view it is fundamentally flawed by the method of appointment, and by the conflicting demands of being a member of the Scottish Executive and their legal adviser.

The role of Lord Advocate as head of our prosecution system must now be retrieved. We should follow England’s example of separating out the role of prosecutor on the one hand and legal adviser on the other, and also put in place an open, transparent and meritorious system of appointment. The office of head of our prosecution service deserves that.