Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, February 24, 2021

Official Report 1035KB pdf

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Urgent Question

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Crown Office (Correspondence)

To ask the Scottish Government whether the Lord Advocate was consulted about the letter from the Crown Office to the Scottish Parliamentary Corporate Body in relation to the evidence from Alex Salmond published by the Parliament.

No, I was not. The decisions in relation to that matter were made by senior professional prosecutors acting independently, as they always do, and without reference to the law officers. Scotland’s public prosecutors take difficult decisions that some may find unpopular. They take those decisions objectively, professionally and in the public interest, and they act independently of any other person.

I note that the Lord Advocate said that he was not consulted. Was he aware of what was going on? It would be helpful to know the process before the letter was issued to the Parliament. Did the Crown Office receive any submissions from any third party before it wrote to the SPCB yesterday? Was it Mr Donnelly who was contacted? Was the Crown Agent, David Harvie, consulted? Did the letter even go across the Lord Advocate’s desk before it was issued?

I received a copy of the letter for my information after it had been issued.

I note that the Lord Advocate did not answer any of my previous questions. I am sure that he will want to take the opportunity in answering my next question to go back and cover the stuff that he did not answer before.

I want to ask the Lord Advocate about the meeting that was held between Levy & McRae and the Crown in advance of the hearing with Lady Dorrian. It was confirmed at that meeting that the Crown’s sole concern was one paragraph in its article about the former First Minister’s ministerial code submission. No other concerns were raised, and no other concerns have been raised subsequently. Given that that article has been up since 15 January and is still up, and that it is essentially Mr Salmond’s submission, can the Lord Advocate perhaps advise what has changed in the Crown Office?

I am not going to get into the substance of the issues, not least because, in doing so, there would be a risk of my breaching the court order.

Fundamentally, what is at issue is an order by the High Court handed down to protect the anonymity of complainers. The Crown’s sole interest in the matter is to secure respect for that court order. It has not sought, and will not seek, to limit the evidence that the Committee on the Scottish Government Handling of Harassment Complaints may have available to it or to interfere with the work of that committee.

Ultimately, it is for the parliamentary authorities to determine what they may lawfully publish within the bounds of the order laid down by the court. The Crown raises issues and concerns in any case in which it apprehends that a contempt may take place. Its sole purpose in doing so is to secure compliance with the order laid down by the court.

I refer to my entry in the register of members’ interests. I am a member of the Faculty of Advocates.

It is fundamental to democracy in Scotland that the Parliament is free to conduct its business without external pressure from Government agencies. Does the Lord Advocate agree that the actions of the Crown Office over the past week threaten that freedom and show the inherent conflict in the Lord Advocate being both the Government’s chief legal adviser attending the Cabinet and the independent head of Scotland’s prosecution service?

On the first point, I do not accept the proposition in the least. As I said, the Crown has no interest in interfering with or limiting the conduct of proceedings in the Parliament. Its only interest is in securing observation of and compliance with an order of the High Court with which we are all obliged to comply, whether in the Parliament or otherwise.

As with any anticipated publication that may amount to a contempt of court, the Crown considered whether it should raise concerns with the parliamentary authorities. It took the view that it should. It was ultimately a matter for the parliamentary authorities, taking their own legal advice, to determine what they should or should not publish. The Crown, having raised the concerns that it has raised, has exhausted its interest in this matter and has absolutely no interest in otherwise limiting the activities of, or conduct of business in, Parliament.

As far as the member’s other question is concerned, all law officers exercise their prosecutorial functions with complete independence. My job is to uphold the rule of law and the administration of justice in Scotland, and that is what I do. I was appointed to this office on the basis that I have no party-political affiliation. However, whether I did or not, it is a safeguard for the rule of law that there are senior lawyers in the Government appointed on a non-party basis whose fundamental responsibility it is to protect the integrity of the administration of justice in Scotland.

I will also be clear that at no time have I encountered any situation in which ministers have sought to influence a prosecutorial decision. Were any minister to try to do so, I would not countenance it—nor, I am confident, would any professional prosecutor who acts on my behalf. Ministers know that they should not seek to do that, and they do not.

The office of Lord Advocate is one of the oldest in the land. It predates this Parliament, the union of the Parliaments and the union of the Crowns. However, it is my experience that a great deal of misinformation has been spread on the role of the Lord Advocate. Therefore, I ask the Lord Advocate to confirm that previous Lord Advocates, throughout devolution, have all been members of the Cabinet. Can he confirm that it has always been thus? It was that way when Donald Dewar was First Minister, when Henry McLeish was First Minister, when Jack McConnell was First Minister and when Alex Salmond was First Minister.

Furthermore, can the Lord Advocate confirm that, entirely separate from his Cabinet role, as Lord Advocate he fulfils a distinct and independent prosecutorial function as head of the Crown Office?

That is a fair question from the member, but I am not entirely sure that it follows the urgent question. I will, however, allow the Lord Advocate to make a brief response to that history lesson.

I am grateful, Presiding Officer. Long before devolution, and at all times since devolution, law officers have been members of the Government. At no time has it been suggested that law officers are compromised in the exercise of their prosecutorial functions by the fact that they are members of the Government. As I said a moment ago, it is a safeguard for the rule of law that there are senior lawyers in the Government whose fundamental responsibility it is to protect the integrity of the administration of justice.

That concludes our urgent question.