The controversies that have SNP ministers set on splitting the Lord Advocate’s dual roles

An expert report is set to be handed over to SNP ministers that could pave the way for splitting the two roles held by the lord advocate.

Moves to split the controversial dual role of the Lord Advocate are being pushed forward by the Scottish Government with an expert report due to be handed over to SNP ministers.

Nicola Sturgeon previously pondered splitting the Lord Advocate’s two roles of the Scottish Government’s chief legal adviser and also the head of Scottish prosecutions, with the former first minister asking in 2021 “whether these dual functions should be separated in future”. Ms Sturgeon warned the process could take some time, including the “possible amendment to the Scotland Act” for the role to be split.

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Before devolution, the Lord Advocate was a UK government minister and advised on legal matters north of the Border.

Lord Advocate Dorothy Bain KC. Image: Jane Barlow/PALord Advocate Dorothy Bain KC. Image: Jane Barlow/PA
Lord Advocate Dorothy Bain KC. Image: Jane Barlow/PA

It has been reported that an expert report into the role, held by Dorothy Bain KC, is expected to be handed over in coming weeks.

Concerns have been raised over a series of conflicts of interests in Ms Bain holding the two roles, particularly around legal cases involving Ms Sturgeon and her predecessor Alex Salmond. The Crown Office has been sent a report into Ms Sturgeon’s husband, Peter Murrell, who is accused of embezzling money from the SNP.

Previous Lord Advocates did not have any role in either the case involving Mr Salmond nor the Operation Branchform police investigation into the SNP’s finances. Any case involving politicians is dealt with by prosecutors without the involvement of the Lord Advocate.

In line with that, Ms Bain has not been involved in this case directly, but the scenario has been highlighted by critics as another reason why the role should be separated.

Three years ago, Ms Bain removed herself from any further involvement in litigation related to the collapse of Rangers FC, over conflict of interest concerns.

Scottish Conservative justice spokesman Russell Findlay said: “While no one can credibly question the integrity of the office holder, to be a member of the Scottish Government while also being head of the independent prosecution service creates a minefield of potential conflicts.

“This dual role is clearly untenable and John Swinney’s Government must be fully transparent about the terms and timescales of this review.”

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A review by Malcolm McMillan, the chief executive of the Scottish Law Commission and former government lawyer, will reportedly investigate the Lord Advocate and the junior law officer position, the solicitor-general and compare how the roles work compared with other countries.

SNP justice secretary Angela Constance said the report would contain a “summary of insights and comments on the Scottish law officers’ roles from former and current holders of these offices and relevant officials”, adding “the work to publish the final report is ongoing”.

A Scottish Government spokeswoman said: “The Scotland Act emphasises the law officers’ complete independence from any other person as they undertake their prosecutorial and investigation of deaths functions — a principle they uphold in everything they do. Any changes in proposed legislation must continue to allow the law officers to operate independently.

“The Scottish Government has commissioned expert research into the distinct roles and functions of the law officers, which will be published in due course. This research will ensure a detailed baseline understanding of the distinct roles and functions of the law officers and will provide information on how the functions of law officers operate in other countries.”

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