Don't let Lord advocate's criminal-law role fall foul of political will

THE First Minister and fellow ministers have taken up their post but there is still a role in the cabinet to be filled (or continued) that is just as important as the others: the Lord Advocate.

Elish Angiolini, the Lord Advocate, will turn up for cabinet meetings until told otherwise. Indeed, she was present at the swearing-in of the First Minister, but she owes her position to Jack McConnell, the outgoing First Minister, and Cathy Jamieson, justice minister, as does the Solicitor General.

The interesting question for the new administration is whether Alex Salmond and Ken McCaskill will follow the old Westminster model and appoint their own person so that their legal adviser will be "on their side". In their efforts, it will not just be a matter of garnering votes but there will always be present the possibility of mounting legal challenges for or against what they are doing. The Scotland Act, which defines the powers of the Scottish Parliament and its relationship to Westminster, is very fertile ground for such challenges.

The Advocate General, a Labour appointee, will still be looking after Westminster and will no doubt be preparing for clashes with an SNP-led administration. There will also be many lawyers, including my own firm, who are quite ready and experienced to advise clients on the lawfulness or otherwise of any measures proposed. The Executive will need someone who has the time, drive, creativity, imagination and robustness to advise and, if necessary, represent them.

However, the Lord Advocate is not just a legal adviser but also the holder of a public office. The Lord Advocate is head of our prosecution service and is also responsible for the investigation of deaths. It actually really has nothing to do with politics. We should all be confident that, if a question arises for investigation or prosecution, that decision will be taken on the basis of evidence, law and the public interest, and will have nothing to do with or to be seen to do with political allegiance or influence. Our prosecution system is creaking already and could do without someone torn between representing an administration and trying to deal with our prosecution system.

Now is the time for the SNP administration to break new ground. The role of legal advisor and the Lord Advocate should not be held by the same person. By all means they should seek to employ, as anyone should, the best legal advisers to represent them in any legal challenges they want to mount or resist, but that person should be entirely different to the one who has the public duty for prosecution and investigation of deaths.

The appointment of the Lord Advocate, like any public office, should be transparent and open, and where there is a better chance that such a person gets the job on merit and not because of political patronage. We have well-established requirements for public appointment. They are based on the Nolan Report and take place under the Public Appointments and Public Bodies (Scotland) Act 2003 and we have a Commissioner for Public Appointments to oversee that. This ensures appointments are made in a way that is open, transparent and merit-based.

If Angiolini is up for the job then she can apply as well.

• Frank Maguire is the senior partner and a solicitor advocate with Thompsons Solicitors.