The constitutional position of the Lord Advocate

Lord Hardie’s resignation as Lord Advocate has come at a bad time - and not just for the First Minister and his beleaguered Cabinet.  For if following the progress of the new legislature on the Mound and coping with the increasing importance of the European Convention on Human Rights were not enough to keep the legal profession in Scotland sufficiently occupied, there is now added the task of attempting to answer the non-lawyer who cares to ask, “What’s all this fuss about?”

In providing an explanation, it seems fair to say that the strident response which the resignation has provoked has its roots in the recent developments referred to above.  Lord Advocates have been elevated to the Bench in the past (and have suffered stinging criticism as a result) yet the flavour of the recent criticisms seems slightly different, rolling together worries over the Lockerbie trial, the ECHR, judicial appointments and underlying disquiet at the Lord Advocate’s position in the Scottish Cabinet.

Taken as a whole, these criticisms go further than the issue of judicial appointments per se to a more fundamental concern with the constitutional position of the Lord Advocate and his combined roles of politician, prosecutor, and judge-maker.  Certainly, this seems an unnecessary number of responsibilities for any one individual and are cause for alarm in those with even a passing interest in the notion of separation of powers.  In untangling the various strands of recent comment it may be useful, then, to explore these different combinations of functions and assess them individually.

The Lord Advocate as prosecutor and politician

Public prosecution of crime is the historical raison d’etre of the Lord Advocate, his responsibility for prosecution being formalised by an Act of Parliament of 1587.  Having been given the right to instigate proceedings regardless of the wishes of the party injured by an offence, the last 400 or so years have seen prosecution of crime become - in all but the most exceptional case - the exclusive province of the Crown.  That there are good reasons for an Office of State devoted to prosecution is undisputed.  More difficult to reconcile is the embodiment of that Office in an individual who has grown to be such a significant figure in the Scottish “political hierarchy”1.  As adviser to the government on Scots law (and as occasional counsel for the government in litigation), the Lord Advocate became intimately associated with the government of the day, an association made all the stronger when - as happened for most of the 20th Century - he sat as an MP or in the Lords.  This dual role has given rise to two competing impulses: that the Lord Advocate should be both independent in his prosecutorial capacity and politically accountable as a law officer.

This desire for political accountability has been given weight even where the question involves the prosecutorial rather than governmental role.  For though in the Lord Advocate is placed “a constitutional trust”2 there must be a glaring breach of that trust before the courts will intervene.  Lord President Clyde’s3 view that, whilst the law officer could be subject to, “the constitutional safeguards of Parliamentary action,” there was no remedy at law for a party aggrieved by the exercise of his prosecutorial power, has been slightly modified by later cases.  Nonetheless, the “hands-off” approach prevails, justified by reference to the public interest in the efficient administration of justice: it is undesirable to see the decisions of the prosecutor challenged on a regular basis in the courts.

This traditional compromise has been formalised by the Scotland Act 1998 (“the 1998 Act”). Section 48 requires prosecutorial decisions (and decisions as to the investigation of deaths) to be taken by the Lord Advocate, “independently of any other person”.  Yet the same section requires the Scottish Parliament to approve nominations for the post, thereby enhancing - at least on paper - the political dimensions of the appointment.  The Lord Advocate and the Solicitor General are to be accountable to the legislature in Edinburgh rather than London.

Even prior to 1998 there were difficulties with this compromise.  One is the reliance on Parliament to ensure that the Lord Advocate is accountable for his prosecutorial activities.  In practice, at Westminster, a convention operated that the Lord Advocate would not be required to give reasons for a particular prosecutorial decision, the danger being that parliamentary accountability is more a matter of form than of substance.  It is too early to say how strong a stance the Holyrood Parliament will take but already the ECHR has had some impact in obliging the courts play a more active role.  As an “act” of the Executive, a decision to prosecute will be reviewable where some aspect of that decision breaches “Convention rights”, for example where there has been undue delay in bringing a. prosecution4.

Secondly, whilst it may be desirable that the Lord Advocate be answerable to Parliament it is not so clear that he should have an overtly political role within the Executive.  Of course it is entirely proper that there should be parliamentary oversight of, for example, the Lord Advocate’s “strategic plan” which places increased emphasis on the prosecution of violent crime, child abuse and drug trafficking and his “review” of racially motivated crime5.

Whilst the final assessment of the public interest in prosecutions may be for the Lord Advocate alone, no democratic system should leave the policies adopted by the public prosecutor entirely unexamined.  This, though, is quite different from participating directly in the formation of wider governmental policy - the opportunity for which is provided where the Lord Advocate attains membership of the Cabinet.  The legitimacy which the Lord Advocate derives from his accountability to Parliament is necessarily undermined by suggestions that he uses this position to influence policy for which he has no mandate.  The key issue is one of public faith in the political system.

One radical reform would be the separation of the public prosecution responsibility from the Lord Advocate’s role of legal adviser to the Executive, a move which would not only mark a fundamental break with tradition but would require Westminster legislation.  This separation of functions was the route taken by the Republic of Ireland in 1974 when the Attorney General’s prosecuting functions were transferred to the newly created Director of Public Prosecutions6.  Of course one much more straightforward change could be made immediately - the removal of the Lord Advocate from the Scottish Cabinet.

The Lord Advocate as prosecutor and judge-maker

It is the Lord Advocate’s role in selecting new members of the judiciary combined with his prosecutorial function which has caused so much disarray in the Scottish courts over the past six months or so.  The Lord Advocate’s influence in the judicial appointments process has long been the cause of disquiet and negative comment7 but the partial incorporation of the ECHR has been the immediate catalyst for change.  The Lord Advocate’s role in the selection of candidates for the Bench was judicially recognised in Starrs v Ruxton8.  However, despite acknowledging that the prosecutor’s participation in the selection and reappointment of temporary sheriffs amounted to his being both party and judge in the same cause (and thereby breached the accused’s right to a fair trial under Article 6(1) of the ECHR), their Lordships were satisfied that the security of tenure which marks permanent appointments was a sufficient safeguard against any threat to their independence posed by the involvement of the Lord Advocate.  It remains to be seen whether the Judicial Committee of the Privy Council take the same view if, as is at least possible, Robbie the Pict’s challenge to Lord Wheatley’s appointment becomes one of the first “devolution issues” to be considered by that court.

There is, though, at least one specific appointment which leaves a Lord Advocate open to almost unanswerable criticism - his own.  Whilst, ironically, it might be possible to defend former Lord Advocates from challenge under Article 6 of the ECHR - employing the argument that once elevated the prosecutorial role is relinquished - it seems increasingly untenable to maintain a system which is perceived to allow unparalleled opportunity for self-promotion.  That the system involves the public prosecutor and the promotion in question is to the Bench undoubtedly adds to unease.  At a time when public faith in the courts cannot be taken for granted - undermined as it may be by reports of crises and chaos caused by devolution and the ECHR - it is essential that those involved in judicial appointments seriously address this anomaly.

The incoming Lord Advocate appears to have accepted the need for general reform of judicial appointments9 but in the interim, he might consider repeating Lord Wylie’s “self-denying ordinance” of 1972.  Whilst the then Lord Advocate undertook not to appoint himself to either of the chairs of the Inner House, public confidence might be bolstered by extending such an undertaking to any judicial role.

The Lord Advocate as politician and judge-maker

It is not an original observation that this kind of self-regulation does not address the more fundamental question of judicial appointments, an issue which has received much oxygen recently. One aspect of this question is, leaving aside the Lord Advocate’s prosecutorial responsibilities, whether he - wearing his Scottish Executive hat - should have any role in the appointments process.  This depends on a satisfactory solution to the more general matter of the extent to which the selection of judges should be left in the hands of professional politicians - an issue becoming more urgent given the perception that the determination of human rights and other constitutional issues thrown up by devolution necessarily involve the making of a greater number of “value judgments” by the judiciary.

The indications are that the Scottish Executive is considering reform in the medium term.  Its legislative powers in this area are, however, circumscribed.  The 1998 Act protects the Prime Minister’s right to recommend the appointments of the Lord President and Lord Justice Clerk, in consultation with the First Minister who himself is empowered to recommend appointments to other judicial vacancies.  These provisions cannot be changed by the Scottish Parliament although they would not prevent the Parliament establishing an “advisory” appointments commission if that is the preferred option.

Particularly interesting in this area are the implications of change for the Law Officers.  It could be that their Executive role proves an additional obstacle to their appointment to the Bench.  Some guidance may be drawn from the recent decision of the European Court of Human Rights in McGonnell10 involving a challenge to the Island of Guernsey’s “Bailiff”.  The Bailiff’s position entailed legislative and executive as well as judicial functions.  The Court held that where a judge presided over a case which required him to interpret legislation, if he had prior direct involvement in the passage of that legislation or of related executive rules, such involvement was likely to cast doubt on his impartiality and could constitute a breach of Article 6(1) of the Convention.

Whilst the logic of the Court might extend to the position of the Lord Chancellor it is more debatable how far it could affect the Lord Advocate who has no formal role in the legislature.  No doubt on a broad interpretation of the McGonnell decision, it might be argued that the Lord Advocate’s position in the Executive constituted direct involvement in the passage of legislation or executive rules.  Further, might it be argued that the prosecution policies adopted by the Lord Advocate also fall into this latter category?

The future

Undoubtedly, many Lord Advocates have been strong candidates for judicial promotion, and probably because of their prosecutorial experience rather than in spite of it.  Similarly, it seems likely that holding the public prosecutor to account will be achieved more easily where he is a member of the Executive.  Finally, it is unquestionable that the Executive should have the benefit of the advice of a Law Officer.  Nonetheless, any one of the various combinations of functions currently exercised by the Lord Advocate might he subjected to criticism, and currently those criticisms are coming thick and fast.  Whilst wholesale rejection of tradition in favour of reform at all costs rightly invites scepticism, waning public confidence is sufficient justification for a thorough examination of the office of Lord Advocate.

Normand concluded that the Lord Advocate’s powers and freedoms depended, in the end, on what he believed to be the well-informed and interested Scottish public.  In the face of perceived unfairness, he claimed, the public would be “swift to condemn”.  He was not wrong.

Christine M O’Neill LLB LLM, Lecturer in Law, Edinburgh Law School

Footnotes

1. W.G. Normand, “The Public Prosecutor in Scotland” 1938 54 LQR 347 at 353.
2. Hume, On Crimes, vol ii, p.134.
3. Hester v MacDonald 1961 SC 370.
4. HMA v Little 1999 SLT 1145.
5. Lord Hardie’s evidence to the Justice and Home Affairs Committee, 31 August 1999, Official Report, col, 17.
6. Prosecution of Offences Act 1974, although for the position under the Irish Constitution, see The State (Collins) v Ruane [1984] IR 105.
7. I.D. Willock, “Scottish Judges Scrutinised”, 1969 JR 193; CM. Campbell, “Judicial Selection and Judicial Impartiality”, 1973 JR 255; Prof. R. Black, “The Scottish Parliament and the Scottish Judiciary” 1998 SLT (News) 321.
8. 2000 SLT 42.
9. The Herald, 25 February 2000.
10. McGonnell v UK (App. 28488/95), Judgement of 8/2/2000