Scotland's small legal world raises questions about the separation of powers – Kenny MacAskill MP

The separation of powers between executive, legislature and judiciary is viewed as fundamental in any democracy.

In Scotland the issue has focused more on the conflict caused by the twin roles of the Lord Advocate, being senior government legal adviser and head of the prosecution service.

The wider concept’s accepted by the Scottish government even if the First Minister’s showing little signs of acting with any alacrity over this specific Scottish issue.

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But a new issue’s now arising and needs consideration. For both the current and past Lord Advocate have spouses who are sitting judges.

Now I state at the outset that there’s no suggestion whatsoever of any impropriety or any aspersions being cast on their integrity. Both Lady Wolffe and Lord Turnbull are formidable legal figures in their own right, in situ on merit and deeply honourable.

This is no doubt a product of Scotland being a small jurisdiction and also a sign in many ways of progress as a society. Women have careers and are rightly being appointed to the most senior legal positions.

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'Conflict of interest' warning over Scotland's new Lord Advocate

When it’s a small world in which they circulate, issues are bound to arise. Research conducted by the House of Commons Library shows that it hasn’t really happened at all in England.

Lord Advocate Dorothy Bain QC is married to a judge, Lord Turnbull (Picture: pool/Fraser Bremner/Daily Mail)

But it has now in Scotland. Is there an issue? Lady Wolffe did have an early involvement in the Rangers FC case and Lord Turnbull was part of the court that heard former diplomat Craig Murray’s appeal against conviction for breaching a court order in blog posts about Alex Salmond’s trial. Both of these cases have seen significant involvement by the Crown.

Although Lord Turnbull stood aside from criminal hearings after his wife's appointment, it still remains that he is a serving judge while his wife sits in government as its senior legal adviser.

Now there’s no suggestion of anything untoward by either in those cases or indeed in any other they’ve been involved in. The First Minister hasn’t seemed too bothered about the Lord Advocate’s role but given she has kept her husband as SNP chief executive when she’s party leader, it’s not surprising.

However, justice has not only to be done but must be seen to be done. There’re many occupations where such a conflict of interest wouldn’t be countenanced. Can it be acceptable here? Maybe they should return to private practice whilst their spouses are in office.

Kenny MacAskill is Alba Party MP for East Lothian

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