Time to think again

In the public perception, the unfortunate affair of Henry McLeish, the former First Minister for Scotland, is at an end.  For lawyers, however, the most interesting part of the saga is yet to be played out.  The Lord Advocate has to decide, after receiving a report from Fife Constabulary, if Mr McLeish is to be prosecuted - presumably for fraud or theft over his expenses claims for his Fife constituency office.

In the days leading up to his resignation, Mr McLeish, in defence of his admittedly inaccurate expenses claims to the Fees Office in the House of Commons, to a lawyer’s eyes, appeared to admit repeatedly in public that he was guilty of fraud.  His constant refrain that he had not personally benefited by taking the £36,000 for himself is, of course, utterly irrelevant in a fraud indictment.  Indeed, his story that the money was used “for the benefit of his constituents” is probably an aggravation of any wrong-doing.  Since the 19th century, the Representation of the People legislation has made “treating” of the public by politicians illegal as it is perceived as a method of buying votes.  Mr McLeish’s tale of the use to which this money was put seems suspiciously analogous.

But whatever may be the merits and demerits of Mr McLeish’s actions, the position now is that the Lord Advocate, who was a member of the McLeish Cabinet, has to decide if his former boss should be placed in the dock of a Scottish court and tried for fraud or theft.  Now Colin Boyd, the present holder of the Lord Advocate’s office, is an honourable man.  It is difficult to believe that he will exercise anything other than a totally professional judgment on this case, as in all others.  However, the perception must be that his decision will be influenced by political considerations.  This would have been even more the case had McLeish hung on as First Minister and the Lord Advocate had to decide if he should be prosecuted when still holding office.  However, the new situation is not much different.  The damage done to the Scottish Executive by the prosecution of a former First Minister (and still a sitting MSP for the Labour Party) would be extreme.  None of that, of course, is legally relevant material for Colin Boyd in his decision-making role.  But will the public believe that these factors will not weigh with him?

It seems that there may be a convenient solution to this problem.  The fraud, if it be such, was committed when Mr McLeish submitted his incomplete claims to the House of Commons Fees Office.  This took place in London.  Although a fraud is the kind of crime which is frequently cross-border and so can be prosecuted in any jurisdiction which has an appropriate nexus, would it not be more sensible in this case to consider that England is the forum conveniens?  If that approach is correct then the decision as to whether or not to prosecute Mr McLeish could be taken by the Attorney-General, Lord Goldsmith.  Lord Goldsmith, although, like Colin Boyd, a creature of the Labour Party, has already impressed as a man of considerable integrity.  At the remove of 400 miles, a decision taken by the Attorney as to whether Mr McLeish should be brought before an English criminal court would have the considerable advantage of being perceived as properly dispassionate and independent.

The wider constitutional question which arises out of this sorry business is if the Scotland Act of 1998 got it right when it legislated the Lord Advocate and Solicitor-General into the Scottish Cabinet.  The independence which is required to fulfil the role of a Law Officer is very much of the essence of that part of the job which places the Law Officer at the head of the prosecution system.  But that independence is also one of the hardest qualities to achieve and preserve.  Since his appointment, Lord Goldsmith has already given a number of fascinating and frank talks on this aspect of his work.  Many public lawyers believe that the role of a Law Officer is diminished and degraded by party-political involvement.  That involvement becomes a daily difficulty if the Law Officer is placed in the political part of the Executive - as has happened in Scotland.  If a Lord Advocate or Solicitor-General is a politician first and a lawyer second, he or she is not worthy of the job.  Because of the new constitutional set-up we have in Scotland, have we not put insurmountable obstacles in the way of our Law Officers in fulfilling their proper and traditional role as independent legal advisers to government and heads of the prosecution system?

At the moment in Scotland, there is something of the “last lagaar” mentality regarding devolution.  Recent events have delighted those who were against devolution and given much force to their contention that it simply will not work.  In these situations it is very tempting to put the wagons in a circle and repel all boarders.  But it would be a sign of considerable maturity if Scotland was willing to admit that we may have got this part of the Scotland Act wrong.

All democratic systems require independent legal advice as part of the governmental process.  That advice can and must ignore party allegiances.  Whether as a matter of fact the independence of Scottish Law Officers is compromised by the present constitutional set-up, only those intimately involved in the process can know.  However, the perception of political influences detracting from that independence cannot be more clearly illustrated than in the situation regarding the possible prosecution of Henry McLeish.  In short, we should think again.