'Making role less political could be an advantage'

Published on 28/05/2007 01:08

ELISH Angiolini, QC, has managed to notch up a remarkable number of firsts in her legal career. In 2001, she became the first solicitor and the first woman to become Solicitor General. Last October, she went one better by becoming the first solicitor and first lady to be appointed Lord Advocate.

Now Angiolini has also become the first in living memory to keep the top law officer's job despite a change of administration. Yet, with the SNP at the helm, she has also become the first Lord Advocate in the post-devolution era to be excluded from routinely attending cabinet meetings.

Alex Salmond, the new First Minister, has made it absolutely clear he wants the Lord Advocate and Solicitor General to be independent from political decision-making. As expected, John Beckett, QC, has been replaced as Solicitor General, thanks to his Labour Party connections, by the senior prosecutor Frank Mulholland, QC.

In the circumstances, Angiolini might be feeling thankful she has been reappointed at all. Salmond's decision to keep her is not really surprising, however. Her lack of party political affiliation was certainly in her favour, but not as much as her formidable track record and respect earned during her time as a fiscal and as a law officer.

"The Advocate", as Crown Office staff like to call her - neatly avoiding the need to use the slightly incongruous "Lord" - has only been in post for a matter of months, but she has already made an impact.

She has brought a more open, down-to-earth and modern approach to the role. Removing her just for the sake of bringing a new face would have seemed petty and given out all the wrong signals, especially when Salmond wants to convince the public he has gravitas.

Several commentators have praised the new First Minister's decision to not only keep Angiolini in the post, but also to exclude her from cabinet meetings.

But will she welcome a dilution of her influence at cabinet? While the Scottish Executive has no shortage of lawyers to call upon for advice, Angiolini has previously argued that having a law officer on hand during policy discussions could nip many legal problems in the bud and help to fight for resources for criminal justice policies.

Obviously Angiolini knew her position could be up for review. In March, she displayed remarkable prescience when she used a lecture on the topic of "The Lord Advocate in the 21st Century" to dispel what she called the "Tolkien-like mythology" surrounding the post.

She also made it crystal clear, both in the lecture and in a subsequent interview with The Scotsman, that the Lord Advocate should continue to attend cabinet meetings. Although they were not members of the cabinet, she stressed the law officers were legally required to be in the Scottish Executive.

Angiolini argued that, as the law permeates everything the Executive does, it was important to have a legal adviser on hand during cabinet discussions.

"Because it is a subordinate legislature, they are constrained by law, so a subtle amendment or change requires someone to indicate whether or not that may be within their competence, or contrary to the European Convention on Human Rights (ECHR) ," she said. "If any changes are made I hope they will take into account the practical as well as the theoretical needs of good governance in Scotland as well as the public interest, and that they will be informed by fact and law, not just suspicion or politics."

Her speech was inevitably perceived as her attempt to head off any attempt to downgrade her role - which, arguably, has now happened. But her exclusion from cabinet meetings has less to do with her own performance than the simmering resentment surrounding the role of the Lord Advocate which brewed during the tenure of Colin Boyd, her predecessor. The fall-out from the Shirley McKie case highlighted an uneasy duality in the Lord Advocate's role as both head of prosecutions and chief legal adviser to the Executive. It reinforced the perception that there was too little separation between the law officers and politicians.

Notwithstanding Salmond's decision to keep the Lord Advocate out of cabinet meetings, the reality is the First Minister has little power to change the role. Splitting the Lord Advocate's twin role as chief prosecutor and legal adviser into two separate posts would address many of the concerns expressed during the McKie furore, but such a move would require a change in the law to be passed at Westminster.

The Scotland Act 1998 prevents the Scottish Parliament removing the Lord Advocate from "his position as head of the systems of criminal prosecution and investigation of deaths in Scotland". It also enshrines the Lord Advocate's powers to refer bills to the Judicial Committee of the Privy Council should there be a question over legislative competence: for example, if it was thought a proposed piece of legislation would not comply with the ECHR.

The act also makes it clear the law officers can't be independent of government: they are an integral part of it. The statute makes no stipulation as to the membership of the Executive other than there should be First Minister, "such ministers as he may appoint", and the Lord Advocate and the Solicitor General.

Politically, it may seem the separation of powers has been reinforced. But the reality is less convincing, and it seems little about the Lord Advocate's role will change in practical terms.

Indeed, Colin Munro, professor of constitutional law at the University of Edinburgh, suggests "there is less to this than meets the eye". He adds: "The bigger change was when the Lord Advocate's influence over judicial appointments was eliminated or at least reduced, because of the requirements of the Human Rights Act 1998. Now, there is clearly a need for the Scottish Executive to have legal advisers, and for someone to be at the head of the prosecution service.

"A more radical reform would be to separate these two roles, as does the Republic of Ireland, for example, but the Scotland Act 1998 gives them both to the Lord Advocate, so a change in that would require Westminster legislation.

"In the meantime, making the role of legal adviser to the Scottish Executive somewhat less obviously political is probably to the advantage of the Executive as well as that of the Lord Advocate."