Dame Eilish Angiolini, a former Lord Advocate of Scotland, gave the Donald Dewar Memorial Lecture on 26 August 2011. The event at Edinburgh International Book Festival was chaired by Susan Rice.
Good evening ladies and gentlemen. Susan, I’m very grateful to you for that very kind introduction, and to the NLS for inviting me to deliver this lecture.
I should explain that the reason I was discussing Harry Potter with my then five-year-old son was because in 2001 the press seemed to think I looked very like him. My husband was somewhat bemused at this fairly ubiquitous description of me in the tabloid press as looking like an 11-year-old boy wizard — albeit a pretty spectacular boy wizard. Not for the 'Daily Record 'was a constitutional significance of my background the headline. In fact, the headline they had explained my appointment with the following: 'Harriet Potter of the Crown Office'. Even the 'Private Eye' had photographs of Daniel Radcliffe and I side by side under the heading: 'Which is witch?'
But for those of you who are genuine experts on J K Rowling's literature, my husband's authoritative view is that I'm much more like the ghostly apparition who haunted the toilets at Hogwarts. I think she was known as 'Moaning Myrtle'.
By 2006, I should say, when I was appointed Lord Advocate, my son had moved on to Tolkien, and asked me this. He said: 'Mum, if you're now the lord of the advocates does that mean you get to work with or deal with trolls, urakais, orcs and goblins?' I was able to answer with absolute honesty: 'Of course.'
It is an immense honour and privilege to give this Donald Dewar lecture. Unlike those who have delivered this lecture before me I was not a close political colleague, friend, or contemporary of Donald Dewar. In strictly social, cephalogical terms I like to consider myself a post-baby-boomer. Nonetheless Donald Dewar made a very significant impression on me from the times I found myself in his company and from what I learned of him more widely.
The first occasion I encountered Donald Dewar was in 1982. I say 'encountered' advisedly, because although I could see and hear him, over several weeks, it wasn’t until after some weeks had passed that he discovered that he was sharing a basement office in Ross Harper's old office in Ingram Street, Glasgow, with a young law student. I was there for the summer doing research for Ross Harper's books 'The Glasgow rape case' and the optimistically named work 'Fingertip criminal law'.
This was no ordinary basement, I should say. It was, in fact, quite luxuriously appointed, with a number of individual offices and a boardroom where working lunches and buffets would take place most days.
Donald was by this time a very senior Scottish politician on recess from Westminster, but he retained a consultancy role as a lawyer with Ross Harper. And hitherto I'd only seen him on television, when he appeared to me as a dreadfully clever, witty and permanently cross man.
Duly intimidated by this severe presence next door — both rooms with their doors open and each looking onto the dining room — I worked away as quietly as possible so as not to draw attention to myself. That was a disposition which I lost later on in life.
Oblivious to my presence Donald would enter the dining room most afternoons where the remnants of that day's buffet lunch remained, though not for long. I would sit there mesmerised at the frequency of visits that this tall, gaunt and angular man would make to the dining room where he would — I think the term is — 'minesweep' the buffet table with great gusto each afternoon, and sometime later behave — as Andrew Marr unkindly described him — like a dyspeptic heron, blissfully unaware of the wee girl sitting in the next room. I became utterly convinced he had hollow legs.
When he did discover me he was utterly unfazed to find he had been observed over weeks plundering the buffet table like a man possessed. Instead, when he had exhausted his stern cross-examination on who I was, why I was there, and what it was I was working on that was so secret I had to be stashed away in a basement without sunlight for a number of weeks, he then began some jovial banter with me as to whether 'Fingertip Criminal Law' would ever reach the rarefied status of our 18th- and 19th-century institutional legal writings.
He was utterly scathing of Ross Harper's vision of making the criminal law more accessible to the public through the medium of this book. Instead he predicted confidently that the book would be used by professional lawyers too lazy to look up real law books. He was of course absolutely right.
During our regular conversations in the basement, which took place over the following weeks, he was never patronising, he was persistently funny, self-deprecating, and wise. I liked him immediately, and just as much as he later proclaimed he liked the sounds of the words which made up Section One of the Scotland Act.
I didn't meet up again with Donald Dewar until about 15 years later, in 1997, after the General Election, by which time he was Secretary of State for Scotland, and I was a grown-up.
I was very impressed to see him stride across Glasgow Central station most mornings, eschewing the ministerial Mondeo for GNER. And I mentioned this to [writer] Ruth Wishart recently and said how pleased I had been at that time with this Everyman approach to politics. Ruth abruptly disabused me of the basis of this admiration when she said Donald had only got that train because it did a brilliant full English breakfast served at breakneck speed between Motherwell and Haymarket.
Over the next few months I was privileged as a Head of Policy for the Crown Office to work on the Historic Scotland Bill, a task that brought me into more regular contact with him. The political objective of effecting profound constitutional change through a Bill which had to be developed over six months led to huge pressures to keep the Bill as simple as possible.
The then Lord Advocate, Lord Hardy, was very concerned that the independence of the office of Lord Advocate should be preserved explicitly in the Bill. He was rightly concerned that it was not acceptable to assume that the convention of independence for the law officers would read over from the Westminster context, and that it should not be presumed that the conventions would automatically be recognised in the new devolved setting.
There was immense opposition within the Bill team to including such a provision in the Bill. The failure to reach agreement resulted in the Lord Advocate meeting Donald Dewar to sort out the stalemate and to Hardy signalling that he could not remain in the Government unless the independence of the prosecutor was protected and set out in the Bill itself.
As he met in private, I sat outside the Secretary of State's room and was called in by Donald Dewar's private secretary some minutes later to ensure that I was also content with the detail of what was proposed for the Bill. As I walked in, Donald had both feet up on a coffee table, legs stretched out and his hands behind his head, as he exclaimed with good humour that we — that we — had a point, and a provision would be included in the Bill. And finishing, he said: 'Are you always such a harridan, Elish?' I suppose 'res ipsa loquitur' ['the thing speaks for itself'] in respect of that one.
At this and all the other meetings I had with Donald Dewar, he treated all those present with great respect and he listened with utmost care, even though he was under huge pressure to get this Bill ready in what was really a ludicrously short timescale.
Maya Angelou, the American poet and writer, once said this: 'I’ve learned that people may forget what you said; people will forget what you did; but people will never forget how you made them feel.' Donald Dewar made me feel like his equal.
I would like to speak this evening about the changed role and responsibilities of the law officer in the devolved Scotland. I think a suitable subheading for this would be: 'Honey, I shrunk the Lord Advocate'. Now that's a phrase I use in a rather less pejorative sense than my learned predecessor Lord McClusky, who used it in writing an article lamenting the shrinking influence of the Lord Advocate in the political environment.
Although the role of the Lord Advocate has undoubtedly shrunk since those salad days of omnipotence enjoyed by Henry Dundas in the 18th century, it is my belief that in the case of the Lord Advocate 'small is beautiful'. When Donald Dewar used to speculate about what changes devolution may bring about to the conventions and practices of Westminster — and Whitehall — he would sometimes remind me of Doctor Seuss in that wonderful book 'Oh, the places you’ll go', such was his anticipation and appetite for what surprises were in store.
I'm not sure, however, that even he would have anticipated the radical departure from tradition that Jack McConnell was to embark upon in appointing a non-political career prosecutor as the Ministers in charge of prosecution and as a chief legal advisor to the Scottish Government. Nor for that matter the significant impact on the legal system that would be caused by some of the structural changes to the role contained in the Scotland Act, changes which were made largely to accommodate the constitutional alterations which were being made elsewhere in the Government.
He was, however, realistic and resigned that some of the less attractive features of life as a Ministers would remain post devolution — although he had hoped that there might be some reduction in one or two of the perennial problems experienced in the UK Government, including the volume of letters and email correspondence received by Government from the vexatious, pernicious or downright crazy correspondent, which would make him groan. Correspondence which created and continues to create a disproportionate amount of futile work for civil servants and Ministers.
The failure to identify how to deal effectively with the prolific musings of conspiracy theorists who occasionally morphed into the leader of a so-called worldwide network of like-minded creatures made him really groan with despair, although he was alwys very amusing. As he observed: 'Even the ugliest id can with the internet command an impressively professional-looking website from an attic bedroom and proclaim himself a magazine or worldwide movement to the unsuspecting.'
The Cleveland Stadium Corporation had a novel approach to dealing with such guff — an approach I wish I had discovered before I left office. A colleague provided me — alas, too late — with a copy of this wonderfully effective way to deal with the weird letter, which I will share with you. And in fact you can read it yourselves on the internet if you’re so inclined. And the letter which was written to the Cleveland Browns in Ohio, from a season-ticket holder, was as follows:
'Gentlemen, I am one of your season-ticket holders who attends or tries to attend every game. It appears that one of the pastimes of several fans has become the sailing of paper airplanes, generally made out of the game program. As you know there is a risk of serious eye injury and perhaps an ear injury as a result of such airplanes. I am sure that this has been called to your attention and that several of your ushers and policemen witnessed the same. Please be advised that since you are in the position to control or terminate such action on the part of fans I will hold you responsible for any injury sustained by any person in my party attending one of your sporting events. It is hoped that this disrespectful and possibly dangerous activity will be terminated. Yours truly yours, Mr Cox.'
And this is how Cleveland Stadium ingeniously responded — and it was in 1974 so it’s been around a long time: 'Dear Mr Cox, Attached is a letter that we received on November 19th 1974. I feel that you should be aware that some asshole is signing your name to stupid letters. Very truly yours, Cleveland Stadium Corporation.' It's complete genius.
While there are some persistent features of government which have not changed with devolution there can be little doubt that from a public lawyer's point of view devolution has changed life radically in Scotland.
We now have a Parliament passing laws at the bottom of the Royal Mile. We have close scrutiny of the Scottish Government’s decisions. We have generally a much more responsive, accountable system of government and an administration across a very wide range of public activities. And we certainly have a considerably increased amount of law — for better or worse.
Essentially the effect of the Scotland Act is to provide Scotland with a written constitution. The Parliament and the Scottish Government are placed in a constitutional relationship with each other with defined legislative and executive competences and with defined relationships with the other parts of the United Kingdom. And part of that process, for the first time involved defining the role and place of the Lord Advocate in statute.
As most of you here this evening will know, I was privileged to be one in a very long line of Lord Advocates. While the title has remained constant, the office is one which has developed and changed almost as much as our nation itself.
I would however venture to suggest that while most Scots are very familiar with the title of the office, and know that it is an intricate part of the legal fabric and history of Scotland, there was until relatively recently only a limited circle of legal and political anoraks — if I can use the term 'anorak' in a non-pejorative sense — who had a full understanding of the role, and indeed fewer still who understood how the role operates in action.
Historically the Lord Advocate has been responsible for prosecuting in the name of the Crown — and we don’t know what the date of the first holder of the office was — but the first recorded holder of the office, of the 120 to date, was Sir John Ross of Montgrenan who is formally mentioned in 1483. The duties seemed to be somewhat more onerous then than now, I have to say, even if, as one 20th-century Attorney General later said, that life as a law officer was — and I quote — 'My idea of hell.'
For example, in 1488 Sir John found himself lined up beside King James III at the battle of Sauchieburn against an army led by the King’s rebellious son. Unfortunately for Sir John the King lost and was killed. The victorious rebels accused the Lord Advocate of treason, condemned him to death, in his very sensible absence, and confiscated all his lands. Happily his lands were later restored after his cause was taken up by Henry VII.
Now I don’t think those demands are made of a 21st-century Lord Advocate certainly — or I would have produced a note from my mother asking for me to be excused that particular day. But I certainly kept my armour handy, and my tin hat certainly, just in case.
Until relatively recently it would have been unthinkable for anyone who was not an actual advocate to hold the office. There is an instructive exchange in the 'Scots Law Times' in 1924 in which the then Lord President of the Court of Session demonstrates conclusively that the appointment of a mere solicitor to the position of Lord Advocate would be a constitutional outrage. The short-lived Labour Government of the time was having trouble in finding sympathetic candidates at the bar, but in the end had to make do with an apolitical appointment.
In 1924 the notion that the Lord Advocate might be a woman would also presumably have been considered self-evidently absurd. The fact that I fulfil all three criteria would I think at that time, in 1924, have been considered just simply beyond the pale.
Before devolution the Solicitor General and the Lord Advocate were Ministers in the United Kingdom Government. In addition to their long-standing responsibility for criminal prosecutions they were the chief legal advisors to the United Kingdom Government on Scots Law.
On the civil side of business, any idea that law officers were not in those days involved in policy matters is an illusion: law officers were used to steer through government legislation, including both the 1978 and 1998 Scotland Acts, as well as dealing with the usual advisory functions. The Lord Advocate also had a discrete policy portfolio in relation to the law of evidence. He had responsibilities for the Scottish Law Commission and aspects of civil procedure.
In 1999 the position changed radically and I suspect irreversibly. Over the last few years there has been a great deal of political discussion on the role of the law officer both north and south of the border. In 2007 the House of Commons Select Committee on Constitutional Affairs conducted an examination of the role of the Attorney General, who is in many respects for England and Wales the UK's broad equivalent of the Lord Advocate, if I can put it that way.
This investigation revealed some differences between the views of present and former law officers, even where the former law officers were still members of the Government of the day. The UK Government also conducted a short consultation on the role, the outcome of which was little change. There was some adjustment of the Attorney's relationship with the prosecution authorities, but perhaps the most striking aspect was a modernisation of the Attorney's historic oath, requiring her — and it was then Baroness Scotland — expressly to respect the rule of law.
That might easily be characterised as a mere cosmetic change, but as a symbol it articulates something profoundly important about the law officer's role. The Attorney's role continues to be the object of public scrutiny in consequence of the continued focus of the Chilcot enquiry on the role of Peter Goldsmith in the decision to go to war with Iraq.
And from time to time in recent years, various commentators have queried aspects of the role of the Lord Advocate. It is perfectly proper, and, indeed necessary for people to debate the very powerful role of the Lord Advocate — but that debate needs to be informed not only by history but by a clear view of the appropriate role of Government in a modern 21st-century devolved Scotland.
As a consequence of devolution the Lord Advocate's role in the appointment of the judges quite rightly ceased' and the various policy functions for which the Lord Advocate had responsibility were transferred to other Scottish Ministers. The role post-devolution is therefore much more limited than it ever was pre-devolution, but it is still an extensive role. And a note of the full range can be found on the Government’s website. So for those of you who are not sad enough to spend your Friday evening listening to constitutional law, but wish to spend a Saturday following it up, you can find that on the Government’s website tomorrow night. I would have a large glass of wine and a curry beside you.
But it does involve some interesting things, such as the Keeper of the Regalia, and a member of the Board of Northern Lighthouse. So if you can picture me climbing the outside of Muckle Flugga north of Shetland, you can imagine the range of some of the activities.
But it can still be asked whether a Scottish Minister can or should combine the functions of chief prosecutor and chief legal advisor to the Government. Is the office, though much restricted, in need of further shrinkage or division?
The Scotland Act makes both the Solicitor General and the Lord Advocate Ministers in the Scottish Executive, since the Lord Advocate's responsibility on the civil side of business lies in advising on legal matters his interests in other Ministers' actions is to see that they are carried out within the law. Since 2007 the law officers do not routinely attend Cabinet. There is no concept of a Cabinet in the Scotland Act and the decision on who are members, or to have a Cabinet at all, is entirely one for the First Minister.
Since 2007 the Lord Advocate attends cabinet only where her or his advice is sought or the Lord Advocate wishes to provide advice. And I think that's important, that the Lord Advocate has a right to attend cabinet to advise on matters which they consider appropriate or, indeed, because Crown Office interests are to be discussed.
The law officers see all cabinet papers in advance, and where a law officer has provided an opinion to Cabinet the Ministers must see the full opinion and not merely a summary or paraphrase of the advice. And I think that's significant, particularly in terms of glosses or summaries of what may well be discerned as an optimistic glosson what is a detailed 30-page opinion.
The ministerial code spells out the long-standing convention that the Government does not publicly acknowledge the occasions it has sought or not sought advice, and the advice is not exposed publicly. This may be frustrating to others, but the rationale is that, like any other party, the Government is entitled to seek confidential legal advice without identifying those issues which may be considered sensitive or requiring the advice of a law officer.
I am therefore, sadly from your perspective, entirely unable to give you examples of some of the issues in which I have been asked to opine over the last 10 years. But I can leave you with breathless anticipation by telling you that they were almost always difficult, very frequently of significant importance, and usually extremely interesting.
It is sometimes suggested that all of the legal advice to the Government could come from detached external counsel — it could be out-housed. On occasions, indeed, counsel are instructed — particularly where litigation looks imminent, and it's not incontrovertibly the case — that Governments require to have a Minister who is responsible for legal advice. But it is noticeable that most of them in fact do seem to have such a person. There are some very good reasons for this and some significant implications, which are sometimes neglected.
There are two principle advantages. On the one hand, it is often said that the provision of legal advice is much more effective when it comes from someone who understands the client's business and needs. And and it’s probably true that clients will take advice — especially advice that they may not wish to hear — from a lawyer who they know understands their business and the particular pressures they face.
That goes for Ministers as much as for anyone else, but I found in my time as a law officer that the Ministers of both administrations I served understood well that the Lord Advocate's duty is to the law and not to party politics.
There is something more important still about the inclusion of a law officer in Government. As the Solicitor General for England and Wales said recently when speaking about the role of the Attorney General: 'The core function of the Attorney General' — for which can equally read the Lord Advocate — 'Is to make sure that Government, that Ministers, act lawfully in accordance with the rule of law.'
Now that's not just empty rhetoric or jurisprudential apple pie — as the late, great Lord Bingham would have put it. In my view it is profoundly important that Government, which after all makes the laws, which binds us all, should itself act lawfully.
As a noted US Supreme Court Justice Louis Brandeis put it in 1928: 'If the Government becomes a law breaker it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy.'
Lord Bingham of Cornhill had many interesting things to say about the rule of law. In seeking to articulate its main principles, he identified one as a core of the rule of law principle: 'That Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of their powers.' He also said that arbitrariness is the antithesis of the rule of law.
Governments, then, have a fundamental responsibility to uphold the law. It is a core value of the rule of law that Government and officials and agents are accountable under the law. And it goes without saying that Scottish Governments I served recognised this and not in any parsimonious sense. Having a chief legal advisor who is part of the Ministerial team serves to ensure that Government complies with and upholds the law.
I suppose that my fundamental objection to the idea of separating the legal advisory function from Government is that Government is not and cannot be like that.
Government in this country at least is within the law or it is not Government at all. You cannot have a Government where legal considerations are a kind of add-on extra, where the law is a sort of garnish which you dab on the top when the cooking is finished.
As Ministers, the Solicitor General and the Lord Advocate are collectively responsible, along with the other Scottish Ministers, for the acts of the Scottish Government. If the law officers take the view that a course of action is unlawful, then they as Ministers — including their colleagues — will not pursue it. If Ministers chose nonetheless to pursue it in the face of the Lord Advocate's advice that it was unlawful, that would leave the Lord Advocate with no choice but to resign.
The continuing presence in the ministerial team of the law officers serves as a continuing public assurance of the Government’s commitment to the rule of law. When Alex Salmond determined that the Lord Advocate should not be a member of the Cabinet it was to further emphasis the steps already initiated by Jack McConnell to ensure that the Lord Advocate does not have an involvement in policy development other than it relates to the Lord Advocate's own retained responsibilities.
That decision did not, however, require the Lord Advocate to be banished from Bute House. I think at the time when it was announced the Lord Advocate would no longer be part of the Cabinet it was almost portrayed as if it was a punishment exercise and demotion for the Lord Advocate.
Far from it: it was a very principled approach which Alex Salmond was taking following what already had been discussed and agree with Jack McConnell about this emphasis on the Lord Advocate's very narrow functions regarding participation in the Government.
But it didn’t require the Lord Advocate to work in monastic isolation from her ministerial colleagues. It was not considered essential for the law officers to be detached, distant, standing upon their professional status, the guardians of constitutional mysteries not properly understood by non-lawyers, making Delphic ex-cathedra pronouncements upon proposed policies. Instead they should be colleagues of Ministers, using their knowledge of law to assist the lawful development of any policy.
Party politics does not enter the matter, nor does it need to in the devolved context. What is necessary is that policy choices made by Ministers are properly informed by sound legal advice. If the law officers are not playing their part, if they are not worthy of the trust placed in them, then the system will fail.
Because of the strong plurality of life in the devolved Scotland, the powers conferred upon Government are subject to a system of checks and balances by control and scrutiny from other bodies that may be politically and institutionally disparate, but who share a common concern for the good administration in the public interest. The significant growth of judicial review in Scotland since devolution is itself evidence of the constant monitoring of government action — and if you felt the ground move there, it wasn’t anything I had said: it's the fireworks outside.
Given the urgency with which things happen, and the requirement for the Government to be able to put out a settled policy line within short timescales, the process simply does not always allow for lengthy ruminations when a concluded policy is referred to the law officers for a formal view as to its legitimacy.
Indeed since questions of legislative or devolved competence may be involved, legal advice is frequently necessary at several stages in the negotiation process. If a modern Government is to operate within the law but at the speed demanded of it by modern events, a modern media, a modern Parliament and a modern electorate, its legal advisers at all levels must be informed not only of its broad policy intentions but also of how its policy is developing.
They must be able to provide legal input to that process as it continues, and that’s because however quickly a policy is formulated it goes out as a considered policy of the Government and is subject to the same legal controls, the same scrutiny from the courts, as the longer-terms would be subject.
An adviser who is on the inside understands the political imperative. A detached legal adviser who'd be brought in and out would be like a legal yo-yo constantly trying to catch up with discussions in order to provide sensible advice.
And it could very often be the case that a very important legal consideration in one particular discrete portfolio area — I, just as an example, give you education — may have very profound implications for other areas of law and public law. And therefore the panoramic view of the implications that a decision regarding one aspect might have for the others was absolutely vital.
In any event, in the context of the Scottish Government in relation to civil matters, a Lord Advocate and Solicitor General are, whether they like it or not, members of the Scottish Government. They're Scottish Ministers. They are responsible along with their fellow Ministers for the policies and decisions of the Scottish Government and, since their contribution to that policy-making process is legal, it is their duty to ensure that those policies are within the law.
The Lord Advocate also has a longstanding right to act independently in the public interest in certain circumstances, but with devolution is also given a specific new constitutional role in relation to legislation for the Scottish parliament. Like the other law officers of the UK — the Attorney General, and the Advocate General for Scotland — the Lord Advocate has a right, and probably the duty, to refer any legislation of the Scottish Parliament to the Supreme Court if he considers that it's outside the competence of the Parliament.
That's a separate statutory public interest role conferred directly on the Lord Advocate as holder of that office. It sets him apart from the rest of the Scottish Ministers because it is a responsibility which he must exercise independently. It makes the Lord Advocate into a sort of constitutional policeman over the legitimacy of the legislation passed by the Parliament.
In practical terms, so far as the Scottish Ministers are concerned, this means that during the life of a Bill the law officers will be asked for legal advice to ensure the Bill remains within competence; because of course Bills are not the same coming out of parliament as they are at the commencement, subject to a variety of government — and indeed opposition — amendments.
If there was ever a question of legislation being put forward by the Government of which the Lord Advocate did not approve, there would be a constitutional crisis in the Government. The final check on that particular exercise of responsibility is of course with the courts — ultimately with the Supreme Court of the United Kingdom. And those courts have recognised the public interest role of the Lord Advocate in defending the Scottish Parliament's legislation.
There has, since devolution in 1999, been a distinct absence of any judicial rulings on the boundaries of the reserved devolved divide under the Scotland Act. Accordingly as law officers over nine or so years we had to consider issues and give advice in a vacuum of judicial authority. And then in 2010, like the number 10 bus, three cases came along at once.
But even these decisions are far from being the last word: the sections of the Scotland Act which govern the divide of legislative competence between Westminster and Holyrood cannot be described, as Lord Hope put it, as a model of clarity, and may be indeed productive of yet more challenges in the future.
While expecting any legislative formula dividing legislative competence between two different parliaments to be straightforward might suggest that you were hopelessly optimistic, the current model is simply tortuous. And I suspect many an hour was spent by me — in fact, I remember many an hour was spent by me — over the last 10 years imagining what ghastly revenge I could visit upon the draftsmen as an exquisite form of justice for the hours I spent pulling my hair out over the draft provisions of Bills.
Probably the most patent and polemic responsibility of a Lord Advocate is prosecution. It's sometimes also suggested it would be better if these prosecution decisions were taken by someone who is independent of Government. In fact it's not possible within the structure of the Scotland Act for the Scottish Parliament or, indeed, the First Minister to bring about a situation of which the Lord Advocate is separate from the Scottish Government. That would require primary legislation at Westminster.
But even if it were possible would it be desirable? The prosecution of crime is one of the most fundamental tasks of government in the widest sense. As a society we have decided over the years that it's dangerous to leave the prevention of crime in the hands of private individuals.
We have decided that we do not want gangs of vigilantes roaming the streets and ordinary citizens going about armed so as to protect themselves from criminals. Blood feud ceased to be appropriate in Scotland — at least most parts of it, at any rate — a long time ago. Nor do we leave it to private citizens to decide whether or not to take criminal complaints to the court: we assert that there is a public interest beyond that of the injured citizen in the prosecution of crime.
We have therefore handed responsibility for these critical matters to the State, to the Government. In modern Scotland that means an administration formed from a democratically elected Parliament. We look to that administration to provide not only an efficient police force but also an effective system of prosecution and justice.
Prosecution is not a function which can be farmed out to somebody to one side of Government, it is one of the Government's most important responsibilities. It lies at the heart of the social contract between citizen and state. A strong and independent prosecution service is central to the rule of law ideal.
Certainly prosecution must be subject to the proper safeguards, and it must be undertaken in a way which does not prejudice the interests of the innocent individual. It must be undertaken for correct reasons: reasons of criminal justice, not to serve the political whims or aims of the party in power or the personal interests of the prosecutor.
A prosecutor must not follow tabloid headlines or do what Ministers think. 'Prosecution to please' would be a quick fix, but it would surrender the very foundations upon which this democracy is established. In 1924 a Labour Government fell because it appeared that the Attorney General had dropped a political prosecution at the instance of his cabinet colleagues.
And those exercising these vital functions must be held properly to account for the manner in which they exercise their responsibilities. In our system that general accountability is to the Scottish Parliament. Indeed it is only if the prosecution function is carried out as part of the Government that proper accountability is secured. If the system of prosecution breaks down it is correct that the Lord Advocate has to account to the parliament.
The fact that prosecution decisions are taken independently does not mean that they’re taken unaccountably. It is for the Parliament to decide whether the Lord Advocate is carrying out that vital function to its satisfaction, not as a matter of party politics but as a matter of sound administration. It would be wrong to seek to allocate that function to some semi-detached outside body.
The prosecution system is intimately bound up with the resource provided by the Scottish Ministers and with the aims of the criminal justice legislation put in place by the Parliament on the basis of the proposals made by the Scottish Ministers.
The further the prosecution system gets from the central core of government responsibility, the less easy it is to hold Ministers as a collective body responsible for how it is operated.
Independence is not just about decision-making in individual cases. It is about the resources and structures to make those decisions independently.
A reliance or dependency on another Minister to bid for those resources may be construed as likely to diminish rather than enhance the independence of the office.The result is that the present system leaves an inefficient Lord Advocate or an irresponsible Scottish Government nowhere to hide. If the prosecution system fails then the Parliament can hold the Lord Advocate, and administration of which he forms a part, accountable for that failure — as indeed would the courts. That is as it should be.
For my part I was content to be accountable to both the courts and to Parliament. As Lord Advocate I exercised considerable powers and carried great responsibilities, and no sensible Minister ever takes Parliament lightly.
Nonetheless Parliament must also respect the independence of the Lord Advocate. And that's a very important aspect in a small jurisdiction — that they understand that the space must be given to prosecutors to make decisions in a cold, clinical fashion, considering only the evidence in the case in the public interest, and not a clamour that someone, anyone, should be convicted of a crime because politicians consider their constituency interests or the political benefits which may accrue from some Pavlovian response to the media, which seems to beg a criticism of a decision which is to be made.
During my time in office I witnessed the wholesale transformation of the prosecution service from a general practitioner service, where most prosecutors dealt with all types of crime based on geographical jurisdictions, to one where national, specialist and expert units were established to enhance our professionalism. During that time we initiated a new approach to cases involving our most vulnerable victims, the national rollout of the Victim Information and Advice Service, followed the piloting of that initiative when I was up in Aberdeen as a regional Procurator Fiscal.
And we also ensured that prosecutors provided skilled and enthusiastic support to youth courts, to the domestic violence court in Glasgow, and the drugs courts — problem-solving courts, where we simply weren't processing cases as widgets through from arrest to conviction with very little interest in the effect of that outcome on the community or the individual — a very significant change in the responsibilities of those in the system.
The review of the investigation and prosecution of rape and sexual crimes which we instigated was a major undertaking which resulted in profound and successful changes to prosecution practices, including the establishment of the specialist National Sexual Crimes Unit, the first of its type in Europe, led significantly well by Derek Ogg QC, and now by Gillian Wade.
We also set up the highly successful health and safety division and a National Deaths Enquiry Unit.
The way in which High Court cases are prepared has also been transformed and the service has become more open, accessible and visible in our communities.
Crime is at a 32-year low, and prosecutors have worked closely with the police on a number of successful crime prevention initiatives — such as a Violence Reduction Unit led by John Carnochan — and educating parents, for example, on the awful risks presented by the internet.
In 2011 we relieved organised crime of £30 million of its proceeds — a record figure — and handed those funds back to local communities to help prevent future offending.
In 2007 the Howat report described the Crown Office and fiscal service as an exemplar body and as the most efficient and cost effective in the Scottish Government.
Both Crown Council and procurators fiscal and their staff have worked and prosecuted successfully many thousands of cases of enormous seriousness, such as the murders of Angelika Kluk and Vicky Hamilton, and too many other dreadful tragedies to mention. And their devotion to duty and the skill over my time in office has been humbling. They have worked tirelessly and it was a great honour to work with so many good and honest people who cared about justice, not just results.
In my time as a law officer, as with all of my predecessors, we also face great challenges to our work, and setbacks when the law was changed dramatically and cases were lost as a consequence. The introduction of convention rights with its accompanying evaluative and dynamic jurisprudence has produced some of these challenges, exacerbated by the particular mechanism for incorporation chosen for Scotland by Westminster. A mechanism which can have a more draconian effect here in Scotland than in most other Council of Europe jurisdictions, including England and Wales.
Devolution was intended as a process rather than an event, but the major objective was to reinforce the ability of Scottish institutions and Scottish communities to have greater influence over their own lives and their own destinies.
The Scottish legal system is one such institution and is almost unique in its hybridity, combining features of both the civil and common law traditions. And it was indeed resilient for hundreds of years to homogeneity with its much larger neighbour.
As Lord Cowper said, in the Scottish legal tradition the truth is that law is a reflection of the spirit of the people, and so long as the Scots are conscious that they are a people they must preserve their law.
The Scottish legal systems, and particularly the Scottish criminal just system, were already essentially devolved prior to the Scotland Act.
I suppose one of the greatest ironies of devolution has been that a process intended to buttress subsidiarity and strengthen local institutions has a potential to emasculate a system which is one of the most potent tools for ensuring the distinctive Scottishness of its social development.
What is concerning is that that was not part of the intended consequences of the process, but it is a collateral outcome of the decision to include the office of Lord Advocate in a statutory provision which made prosecutorial actions in Scotland alone a matter of constitutional vires.
Those vires issues included those human rights incorporated in the Human Rights Act of the same year. The Human Rights Act itself does not confer any special right of appeal in Scottish criminal matters to the Supreme Court for any other alleged breach of convention rights in criminal proceedings. Nor was such an opportunity taken in the Constitutional Reform Act of 2005.
The intended interaction of these two statutes — the Human Rights Act, and the Scotland Act of 1998 — was not the subject of sufficient consideration, and both Bills were pushed through at great speed and with little opportunity for close analysis of how they would operate in tandem. The results appear like a constitutional conundrum.
While Lord Hope has suggested that the Scotland Act uses the Human Rights Act simply as a dictionary to explain what it provides for the protection of human rights, the characterisation of acts of the prosecutor alone as matters of vires in Scotland where convention rights are engaged in criminal cases has produced a fundamental anomaly in the way convention rights can be adjudicated across the United Kingdom.
So, as an example, an accused may appeal a conviction on two grounds: (1) an alleged breach of Article Six by the Procurator Fiscal, and (2) a breach of Article Six because of an alleged misdirection by the trial judge. Yet only the first ground can be appealed to the Supreme Court: the second cannot. This asymmetrical conferral of jurisdiction does not make sense and requires further consideration.
Likewise an appeal to the Supreme Court on a convention rights-based devolution issue can be granted by special leave of the Supreme Court: unlike the position in England and Wales, where an appeal may only be taken to the Supreme Court on a human rights issue in a criminal case with a leave in certification of the Appeal Court there.
The Appeal Court in Scotland is therefore afforded less autonomy than the Court of Appeal in England on those human rights issues which arise in criminal proceedings, because they are also characterised as devolution issues.
So far these issues have not been addressed, I think, adequately in the Scotland Bill before Westminster, although the Advocate General is making a valiant attempt to address some of the difficulties which have been encountered as a result of the 10,000 or so devolution issues raised in the course of criminal proceedings.
And I believe the issue cannot be resolved until it's determined by the politicians whether they wish to have the jurisprudence on ECHR in all criminal proceedings subject to a right of appeal to the Supreme Court, rather than just one particular aspect of such case, or to allow the Appeal Court in Scotland to remain the final court of appeal in criminal proceedings and develop its own ECHR jurisprudence. After all, the mantra of the Human Rights Act was: 'Rights brought home'.
Or, alternatively, allow the Appeal Court in Scotland to refer ECHR issues in criminal cases to the Supreme Court in cases of significant UK-wide public interest that properly require the scrutiny of the Supreme Court, putting our own Appeal Court on an equal footing with the Court of Appeal for England and Wales.
Further anomalies arise in the different treatment of legislation of the Scottish Parliament in areas of competence which rival that of Westminster itself.
The Scottish Parliament has very recently passed legislation on sexual offending. Until that point sexual offences were prosecuted under United Kingdom legislation or the common law. As a result of the new Scottish Act, the vulnerability of the legislation to challenge is so much greater because it no longer enjoys the sovereignty of Westminster legislation and could result in the loss of a prosecution if found wanting or deficient.
For a victim whose crime is prosecuted in England under a Westminster Act, the Human Rights Act also provides a protective measure, and all that would be available to the accused in an identical situation would be a declaration of incompatibility, but the proceedings themselves could continue.
This discrepancy in the remedies and rights of appeal available under human rights law needs to be addressed. The current Bill before Westminster is predicated upon the objective of achieving a consistency of approach to our ECHR obligations, but it does not deal adequately with the current asymmetric anomalous system of judicial control, a system which bites more deeply and painfully in Scotland than in any other part of the United Kingdom.
An example of that was a recent statute which was a UK Westminster Act but which had been commenced by a Scottish Parliament statutory instrument.
Now, while the UK Act — the primary legislation — could not be challenged and could not be struck down because of an ECHR incompatibility, the commencement order, because it came from the Scottish Parliament, could, and therefore, while the English and Welsh authorities could respond to it in a proactive perspective way, legislation had to be rushed through in the Scottish Parliament because of the retro-active and current live impact it would have on immediate cases here.
And I think while the sovereignty of Westminster legislation was preserved for a particular reason, and the devolved limitations also identified for that basis, it may well result in a very chilling effect on putting through legislation in the Scottish Parliament when, if it was UK legislation, it is protected under the umbrella of the Scotland Act and sovereignty at Westminster.
In conclusion, ladies and gentlemen, notwithstanding the challenges and immense weight of responsibility of the last 10 years, the opportunity to serve both as Solicitor General and Lord Advocate in the early years of a devolved Scotland, to two entirely different Governments, has been a huge privilege and a profound honour.
For 28 years of my life I have been involved in some capacity or other with the prosecution service. Given the literary context in which I speak this evening I must conclude, however, by observing that in literature — and indeed in wider fiction — prosecutors are usually portrayed, with the odd noble exception, as figures of some suspicion and doubtful merit. From the Merchant of Venice to Rumpole of the Bailey, they appear as a pretty grim bunch.
More recently in Hollywood and televised fiction they appear as somewhat hapless and straight-laced opponents — usually, I should say, in ill-fitting suits — who stand against the flamboyant and talented defence lawyers of Hollywood legend — and we can recognise it even in Scotland. I see the swashbuckling, talented, handsome Mr McBride QC is here among you today.
And even in Scotland criminal defence lawyers — some of whom I have to say have been subject to a stardust makeover — they're no longer known as 'Criminal defence lawyers', they now work under the romantically ubiquitous epithet of 'Human rights lawyers'.
Such works as Harper Lee's magnificent 'To kill a mockingbird' and the play and film 'Twelve angry men' have laid a very poor foundation for any prospect of securing public empathy for prosecutors generally.
John Grisham's description of prosecutor Rufus Budley [sic] in the novel 'A Time to Kill' is also an eloquent case in point. And I quote: 'Bring on the trial. Put the jury in the box. He guaranteed a conviction. He guaranteed a death penalty. He was obnoxious, offensive, arrogant, self righteous. He was himself.'
More recently Stieg Larssen's trilogy features the feckless prosecutor which Jan Czarvik describes as: 'An indictment of the arrogance, stupidity and sheer malevolence of those in society who have been entrusted with great power and influence.'
On the other hand, Horace Rumpole, defence counsel — he enjoys a little tipple of Chateau Thames Embankment — is held in deep affection by the nation, as he declares himself a staunch believer in the presumption of innocence and refuses on ethical grounds to prosecute.
As one American district attorney put it, with some resignation: 'In short, popular culture has always loved the criminal defence lawyer. They are the underdog, the plucky defenders of innocent accused. In contrast prosecutors have long been depicted as over zealous, ambitious, and hell-bent on frame some poor, marginalised client.'
More deadly than any other popular cultural influence has been the massive and sustained success of the American television series Perry Mason — and there may be one or two of you old enough to remember that series. For those of you old enough to do so, he needs little introduction — because Perry Mason (for others) was a criminal defence lawyer who never lost a case. His adversary, prosecutor Hamilton Burger — known as 'Hamburger' — never won one. In fact Perry was so good he often did the prosecutor's job too.
Episodes would climax with Perry's rigorous cross-examination of an unsuspected prosecution witness who suddenly confessed to the dastardly crime. What was slightly surprising was how the hapless Hamilton Burger managed to remain District Attorney despite losing 250 consecutive murder cases all featuring innocent accused.
The reality is thankfully very different. Year after year I have met with many of the world's prosecutors, some of whom have lived their lives under constant threat of assassination, or have had to fight hard to counter corruption within the Governments who also employ them. Many live their lives under heavy armed security to protect them and their families from cartels of organised crime, who also threaten the very fabric of the communities they serve.
Despite being incarcerated for many years at the hands of South African prosecutors, Nelson Mandela also gave a different depiction of the public prosecutor as he accepted the medal of honour in 1998 from the International Association of Prosecutors. He saw prosecutors as champions of human rights, protecting the weakest and the worst among us. And he said this:
'The challenge for the modern prosecutor is to be a lawyer for the people. It is your duty to build an effective relationship with the community and to ensure that the rights of the victims are protected. It is your duty to prosecute fairly and effectively according to the rule of law and to act in a principled way without fear, favour or prejudice. It is your duty to build a prosecution service that is an effective deterrent to crime and is known to show great compassion and sensitivity to the people it serves.'
I have been enormously privileged to serve with men and women of great moral and physical courage in Scotland's prosecution system. People who care about justice with every fibre of their being. I have also had the great luxury of serving with two different Governments in a mature democracy, and with Ministers in each who utterly respected the independent role of the Lord Advocate and that of the justice system.
Ladies and gentlemen, I'm very grateful to you for letting me share some of my reflections on that role in honour of the man who set up the new political environment in which such an off-the-wall appointment as mine could be contemplated. Thank you very much indeed.