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The next item of business is a statement by John Swinney on the roles and functions of Scotland’s law officers. Questions will be taken at the end of the statement, so there should be no interventions or interruptions.
15:01
The office of Lord Advocate is one of the oldest and most important institutions in Scotland’s public life. The Lord Advocate is a Government minister whose principal responsibilities include being both the independent head of the systems of criminal prosecution and the investigation of deaths, and the principal legal adviser to the Scottish Government.
Together with the Solicitor General for Scotland, the Lord Advocate plays a vital role in upholding the rule of law, in the administration of justice and in protecting the public interest. For generations, holders of those offices have discharged those responsibilities with integrity, professionalism and independence. Their work in fulfilling the expectations of the office has been fundamental to the delivery of justice and the protection of rights at all times.
The current Lord Advocate and Solicitor General continue that tradition of outstanding public service. The reforms that they have put in place are designed to provide greater transparency about decision making and to be as open as possible about the sensitive judgments that have to be made while protecting the independence of their decision making.
Over the centuries, the roles of the law officers have not remained static. They have changed alongside Scotland’s society, institutions and constitutional framework to meet the needs of the people whom they serve. The current system has ensured that Government policy is informed by expert legal advice and guided by the rule of law, while the Lord Advocate remains directly accountable to Parliament for the exercise of her prosecutorial functions.
However, no system, however long-standing, should be beyond examination. It is right that we consider whether the current arrangements continue to serve modern Scotland as effectively as they can.
In 2022, the Scottish Government commissioned Malcolm McMillan to carry out detailed research into the history and functions of the law officers. His “Report on the Roles and Functions of the Scottish Law Officers”, which was published earlier this year, gave us an important foundation and a shared understanding of the roles in question. However, that exercise was not intended to answer the question of what Scotland should do in the future, and it did not address the detailed questions that would have to be considered in order to ensure that there could be assurance on the public expectations on the independence of decision making if the current arrangements were subject to change.
In June, I confirmed to Parliament that I would continue to engage on this matter. As I emphasised then, and continue to emphasise now, it is vitally important that we approach any reform of the law officers’ roles in an open and thoughtful way, to ensure that the significant constitutional, legal and operational issues are thoroughly explored and that there is a clear understanding of the implications of any changes. Only then can Parliament have a fully informed discussion about whether any changes should be made to those roles.
With that in mind, I announce to Parliament that the Scottish Government will establish an independent review on the future functions and responsibilities of the Scottish law officers. The review will be independently chaired by Lord Boyd of Duncansby. Having served as both Lord Advocate and Solicitor General, and later as a senator of the College of Justice, Lord Boyd brings to this review extensive experience of Scotland’s legal and constitutional framework.
It is essential that the review hears from a wide range of individuals and organisations, such as the judiciary, professional bodies, members of this Parliament and others with an interest in the future role of the law officers.
Lord Boyd will appoint a reference group to support his work, ensuring that the review benefits from a broad range of perspectives and expertise. I am confident that, as chair, Lord Boyd will engage widely and openly to ensure that all relevant views are heard.
The review will examine the advantages and disadvantages of making changes to the current arrangements. It will consider the strengths and weaknesses of alternative models, engage with the legal, constitutional and practical implications of reform, and make recommendations to Scottish ministers.
Crucially, the review will approach these issues with an open mind. It will follow the evidence where it leads, whether that is to reforms or to maintaining the status quo.
In accepting the appointment, Lord Boyd said:
“I am very pleased to have been asked by the First Minister to conduct this review. The issues it will consider are of fundamental importance to the administration of justice in Scotland.
Any recommendations must safeguard the independence and integrity of the prosecution system, sustain public confidence, strengthen accountability, and ensure that Ministers continue to receive high-quality, professional legal advice.
I approach the task with an open mind and will consult widely before making my recommendations to Ministers in due course.”
The Scottish Government will provide administrative support, but the review will work independently and its conclusions will be entirely its own. The review will begin work in the new year, and the current intention of the chair is for it to publish its final report in the latter part of 2027.
Once the review has reported, we will consider its recommendations carefully. If changes are recommended, those proposals may then form the basis of a public consultation and Parliament will have the opportunity to scrutinise any of our subsequent decisions on those reforms.
It has been widely established, including by United Kingdom Government ministers, that consideration of whether any changes should be made to the roles of the Scottish law officers is properly a matter for this Parliament to lead on. By establishing this independent expert review, we are ensuring that Scotland takes a careful, evidence-based and mature approach to an important constitutional question.
In closing, I would like to put on record my gratitude to the Lord Advocate and the Solicitor General for their support, leadership and constructive engagement as we have developed our plans for a review. They have welcomed the opportunity to improve understanding of their roles, while ensuring that any proposals for change are informed by a full and careful assessment of the options and their consequences.
I also welcomed the constructive tone in this chamber on the case for considering reform when the current law officers were nominated in June. I hope that parties across the chamber will engage with the work of the review and its recommendations in a similar spirit.
It is right that we debate the future of the law officers’ roles. These long-standing roles have been crucial to establishing and sustaining a legal framework in Scotland that commands public confidence, provides dependable legal advice for Government and enables justice for all to be delivered. It is absolutely critical that, in any process of reform, those attributes are maintained.
In commissioning the review, the Government wants to ensure that the debate on this important issue is guided by the highest quality of evidence, analysis and consideration. I know that Lord Boyd will provide that approach and perspective. I encourage all interested parties throughout our country who wish to contribute to this process to approach the review in that spirit.
Thank you, First Minister. We have 20 minutes or so for questions. Everyone who wishes to ask a question should press their request-to-speak button now, please. I ask for concise questions, because otherwise we will struggle to get all members in.
Why is it only now that the First Minister agrees that there is a problem that needs to be fixed? Until now, the Government has repeatedly praised the independence, integrity and effectiveness of the current Lord Advocate and Solicitor General. If ministers have confidence in the existing system, what problem is the review seeking to solve?
Let me make it clear that the Government’s decision to conduct the review has absolutely nothing to do with our assessment of, or commentary on, the Lord Advocate and the Solicitor General, who carry out their functions to the highest standards of professionalism and independence in their decision making, as I narrated in my statement.
This is the Government acknowledging the fact that there has been widespread debate about whether the Lord Advocate should exercise the dual role of principal legal adviser to the Government and head of the prosecution system. That is not a new issue—it is an issue on which my party and other parties have commented before. As a consequence of those issues having been raised, and given the constitutional significance of the roles of the Lord Advocate and the Solicitor General, I feel that it is important that they are properly and fully examined. Lord Boyd will do that on our behalf.
I call Pauline McNeill, who is dialling in remotely.
Can I have the First Minister’s assurance that the review led by Lord Boyd will consider, as a matter of priority, how the Parliament will continue to hold the Lord Advocate and the Solicitor General to account? For example, during the Post Office scandal, it was vital that we heard directly from the Lord Advocate about what exactly happened in the prosecutions of postmasters. Does the First Minister agree that it is vitally important that we do not lose any accountability of our law officers to this Parliament in any changes that are made?
Pauline McNeill raises one of the most fundamental issues that we must discuss. The current arrangements have served this country well, for the very reason that she sets out: Parliament is able to exercise an appropriate level of accountability in relation to our law officers on issues of significance and prosecutorial policy.
I do not want to see any diminution of that accountability. Indeed, many reforms that the current Lord Advocate has undertaken strengthen accountability, and taking that forward is one of her priorities.
The process that we are embarking on is designed to properly, dispassionately and calmly explore the very important issues that Pauline McNeill raises, because those aspects are fundamental to the role of this Parliament and the exercise of its responsibilities. I feel that that debate must be informed by considered input from Lord Boyd, who I think will help us to reach conclusions on whether there would be an advantage in changing the arrangements or, as Pauline McNeill indicates, whether there would be disadvantages if we do not get the arrangements for accountability right.
I welcome the First Minister’s statement and the repeated references to the point that the independent review will be evidence led, which is so important in this case.
I want to press the First Minister on an issue. Will the review consider what the roles and responsibilities of the Lord Advocate would be if the position were decoupled?
That is at the heart of the exercise that Lord Boyd will undertake. The Lord Advocate’s role is deeply woven into the fabric of Scots law and the way in which justice is exercised in Scotland. The issue that Pauline McNeill just raised about parliamentary accountability is important in providing a line of sight for the Parliament in those areas.
Those points will be material to the judgment that Lord Boyd has to consider and advise on, because none of these issues is straightforward. There is an enormous amount of complexity, at the heart of which is the importance of ensuring that principles of justice are maintained, independence of prosecutorial decisions is enhanced, the Government has access to the highest quality of independent legal advice and members of the public have confidence in that system. The issues that Mr Linden raised are central to the remit of the review that Lord Boyd will undertake.
I follow the First Minister in recognising the important contribution that the former Lord Advocate and current Lord Advocate have made to Scotland.
The review is ultimately about whether we should split the role. If that is the route that we go down, there will be a need for prosecutions to rightly be politically neutral, and there will be a need to maintain a system of policing and prosecuting by consent, whereby prosecutors are accountable to the Parliament and, by extension, the public. There will also be a need for unity between the two roles, if we choose to create them, in relation to decisions such as the establishment of the Thistle.
Is the First Minister confident that the review will consider all those practical implications, including the point on unity, to ensure that whatever model is chosen, accountability is maintained?
The Government could have decided to embark on a particular change to the arrangements for the Lord Advocate and the law officers’ function. However, in my judgment, there is far too much complexity to be explored, an awful lot of which has been put on the record by Gillian Mackay—all of it legitimate—to enable us to come to an informed position about any particular change in this area.
I give the assurance that, this afternoon, members will be able to see the terms of reference that have been set out for Lord Boyd, which are comprehensive enough to enable all those issues to be addressed. I believe that the Parliament will benefit from having such a dispassionate and considered contribution from Lord Boyd.
I thank Gillian Mackay for her comments about the current and previous Lord Advocates, who, as I have maintained several times, have served Scotland with enormous distinction.
The Scottish National Party manifesto promised a review of the Lord Advocate’s dual role five years ago. The then Lord Advocate went on to back SNP plans to scrap jury trials, effectively decriminalise possession of heroin and crack cocaine and tip off John Swinney about Nicola Sturgeon’s criminal husband. We really do not need another SNP review, so why will John Swinney not just end the Lord Advocate’s dual role now?
I suppose that Scotland will be able to see the difference between Mr Findlay’s approach and my approach, which is at the very heart of the point that I am making to the Parliament today. That is not a way to go about determining policy. The last way that we should go about determining policy is to be driven by political invective, insults and pathetic comments. [Interruption.] Conservative members can shout and stick their fingers up at me, but it is totally and utterly debasing to listen to these characters, who have just taken an absolute hammering in the election and who come in here with a sense of entitlement—
Come on!
They do not understand—
Excuse me. Stephen Kerr, please let the First Minister speak.
The Conservative members are not prepared to contemplate the complexity that is involved in the issue. As I said in my response to Mr Linden and in my statement, we need to ensure that public confidence in our judicial system is maintained by whatever changes we make, that the Government is still able to get access to the highest quality legal advice, that we have accountability around the independence of prosecutorial decisions and that we have available to us a constitutional approach that is compatible with all the other statutory areas of activity in Scotland. That needs a careful, measured process of assessment; it does not need the invective of Russell Findlay.
Theatrics aside, in 2021, this Government recognised the urgent need for reform of Scotland’s law officers. We do not need another review to tell us that. The solutions are staring us in the face. There is an inherent conflict of interest in the Lord Advocate’s current dual role, and that is why the Liberal Democrats have long called for an independent director of public prosecutions. We also need a separate function and a complete overhaul of the fatal accident inquiry system, because right now, due to the backlog, there are hundreds of families waiting for answers on what happened to their loved ones. The First Minister was largely silent on such solutions in his statement, but, as he makes representations to the inquiry, will he lend support to solutions such as those proposed by the Liberal Democrats?
First, the Liberal Democrats have not long supported the separation of roles, because I can remember Jim Wallace being a strong advocate in the House of Commons for the maintenance of the arrangements that we have during the passage of the Scotland Act 1998. [Interruption.]
That was a long time ago.
Some of us have been around for a long time and are able to remember some of the Liberal Democrat history, even if the Liberal Democrats have forgotten all about it. I will just leave that point where it is just now.
Mr Cole-Hamilton advances a point about a conflict of interest for the Lord Advocate. That is his opinion, not a demonstrable fact. All sorts of different procedural explanations, all of which are publicly accessible, demonstrate how the Lord Advocate applies independence of decision making in all circumstances, so I reject unreservedly the idea of a conflict of interest. The Lord Advocate takes an appropriate approach to the exercise of independent judgment that reflects those priorities.
I have sympathy with Mr Cole-Hamilton in relation to his point about fatal accident inquiries. One of the priorities of the Lord Advocate is to try to enhance the pace at which fatal accident inquiries can be considered in order to provide answers to the families who require those answers.
I very much welcome the statement and the announcement of this expert, comprehensive and independent review. It is important to determine what is most appropriate as well as what is most efficacious. Will the review consider whether separation of the roles might create additional bureaucracy and related disadvantages?
Consideration has to be given to these questions, because we are interested in the utilisation of resources—that is also relevant to the point raised by Alex Cole-Hamilton in relation to fatal accident inquiries—but we also have to be mindful, in all these approaches, of the question of accountability for decision making. There has to be absolute clarity about accountability for decision making. Those questions will be relevant to the review that Lord Boyd undertakes.
Reform UK has said that the dual role should end, and we voted that way in June. Can the First Minister explain the timings of the inquiry? Why are we waiting until 2027, and with what degree of certainty can the First Minister say that we will get the final report in 2027?
We are taking steps to prepare for the necessary support for the inquiry to commence in January. Lord Boyd has other commitments that are relevant in the short term. He will commence the work in the new year, and his very firm expectation and commitment to me is that the work will be undertaken during the course of 2027.
I note the First Minister’s words on the “constitutional significance” of the dual role. Might the separation of the roles mean that there would always be a need for a political role in Cabinet?
For the duration of the SNP Government, the law officers have not been political appointments. Indeed, the most recent political appointment of a law officer was that of Lord Boyd. Colin Boyd was appointed as the Lord Advocate by the Labour Government in about 2001, if my memory serves me right—or it was something of that order.
The Lord Advocate and Solicitor General have been appointed in their capacity to provide independent legal advice to the Government and to lead the prosecutorial functions of the Crown Office. The Lord Advocate only ever participates in Cabinet in offering legal advice to the Government. For me, that is an absolutely fundamental necessity. From my experience in Cabinet over many years, having the law officers present to provide us with legal advice and to ensure that we act appropriately and within the law is fundamental to the exercise of good governance in Scotland. I pay tribute to all the Lord Advocates who have served round the Cabinet table for discharging that function in an independent and dispassionate way.
Given what the First Minister has said about conflict of interest, does he accept that there is considerable concern that the dual roles of head of prosecution and legal adviser to the Scottish Government are incompatible and that there is a perception of conflict of interest? Will that be included in the review’s terms of reference as a substantial consideration?
Will the First Minister outline whether discussions have taken place with the UK Government about the review, including on the timetable for any potential legislation?
Katy Clark makes a point that is relevant and important to the decision that I am taking. I recognise the debate that is being aired about the dual role of the Lord Advocate, and it is important that that issue is solved and addressed in a considered fashion, because many complexities have to be worked through. Simple solutions have been offered to us, such as just adopting the English system, which apparently separates the functions. However, the Attorney General has involved functions in relation to prosecutorial decisions, so there is not a neat separation of roles in the English system. Some myths need to be explored to enable us to have an informed debate. I accept that the debate is happening, and it needs to be addressed in a dispassionate fashion. The remit and terms of reference of the review will accommodate all the issues that Katy Clark has raised with me.
In relation to the UK Government, I have written to the Secretary of State for Scotland to advise him of the statement that I am making. Obviously, we await the dialogue that comes out of the review that is to be undertaken by Lord Boyd to consider any issues about parliamentary timescales and legislative opportunities.
I welcome the fact that the First Minister is encouraging broad engagement and contributions to the review, but what lessons does he think that Scotland can learn from jurisdictions that have separated prosecutorial and advisory functions?
It is vital for us to understand and appreciate that learning in undertaking the review. It is vital that we have an appreciation of the issues that are raised. As I mentioned in my answer to Katy Clark, there is a suggestion that there is a neat separation of responsibilities in England, but the situation is not nearly as simple as that. Those are some of the material questions that we have to consider. We need to think about what is appropriate for the judicial experience in Scotland, which runs over many centuries; about how our legal system has developed; and about whether such steps are the correct ones to take.
The First Minister says that reform of the law officers is properly a matter for the Scottish Parliament to lead on. However, any changes to the roles of Lord Advocate and Solicitor General will involve reserved matters and therefore will need either UK Parliament legislation—a section 30 order or similar—or transfer of the power to make such changes to this Parliament. What discussion has the First Minister had with the UK Parliament on the issue, other than having written to the secretary of state? How will the First Minister ensure that this Parliament has the decisive role in determining any future model?
As I indicated in my statement, almost everyone—including UK ministers—has accepted that this Parliament should lead the consideration of these issues, hence the process that I am commencing today. Beyond what I said in my answer to Katy Clark, I have had no further dialogue with the UK Government on this question, but we will engage in such work as we hear from Lord Boyd in the fullness of time. However, to be crystal clear, I believe that this Parliament should determine any changes to the roles of the law officers in Scotland and that it should be responsible for legislating for such changes, should that be needed.
How can we sure that, if the dual role of the Lord Advocate were to be separated, a new model would preserve prosecutorial independence and effective Government legal advice?
How the arrangements that we take forward will enable those elements to be asserted and assured is the central question that must be considered. Those elements are central to the effective exercise of the Lord Advocate’s functions, and the Government and the prosecutorial system depend on them. Therefore, those questions will be central to our consideration of all these issues.
If there was an Olympic sport for kicking things into the long grass, the SNP would almost certainly win the gold at every Olympics. The First Minister and that lot over there might not like it, but it was in 2021 that the SNP said in its manifesto that it will consult on the separation of the roles. It is now 2026, and we are talking about the end of 2027, 2028 or 2029. There has been the McMillan report and there will now be the Boyd review. We are talking about taking a decade to consider something as simple as—[Interruption.]
A generation, indeed—for heaven’s sake.
Mr Kerr. We are all having a great time, but how about getting to a question?
The First Minister is certainly not operating at pace. Has he really never spoken to a UK Government minister about this fundamental aspect of the constitution, which is reserved?
That concludes the ministerial statement on the roles and functions of Scotland’s law officers.
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