Sunday, August 05, 2007

Law Officers are independent claims Lord Advocate despite mounting criticism

Some people seem to have forgot how to use a telephone, or even email, as was demonstrated last week in a grandstanding debate in the Scotsman letters section on the 'independence' of Scotland's law officers.

Rather than turning the debate into a big-daddy v giant haystacks match, here follow the letters as they appeared in the Scotsman, which followed an article by Lord McCluskey criticising the Scottish Executive over sending those arrested over the Glasgow Airport attack to England to face a prosecution there, a story we covered here

Whether the 'debate' prompted by Lord McCluskey's feature in the Scotsman was genuine or purely for public consumption, we leave that for readers to decide ... but how dare anyone suggest that political theatre has now entered the debate on reforms of the legal system !

First, the letter from the Lord Advocate, Elish Angiolini :

Role still independent

I feel I must respond to Lord McCluskey (Law and Legal Affairs, 30 July) on the role of the Lord Advocate.

I am puzzled by the suggestion that the role has changed over the years in anything less than an entirely open manner. Since devolution, the nomination of Lord Advocate has to be debated and approved by the Scottish Parliament.

Changes since devolution have seen the Lord Advocate relinquish any role in the appointment of judges and a greater separation from political ministers in government. These changes are entirely consistent with the proper independence of the Lord Advocate in the role as head of the systems of prosecution and death investigations - an independence enshrined in statute as recently as 1998 in the Scotland Act.

I have had the privilege of working for many Lord Advocates. Each guarded the independence of the role ferociously, as do I. It is for others to judge my success or otherwise, but I do feel entitled to take issue with the somewhat startling suggestion that the only way to ensure independence of law officers and of the advocate deputes who prosecute cases in the High Court is to ensure they are appointed from one small part of the legal profession, the Faculty of Advocates, or indeed that prosecutors whose background is in career prosecution are in any way inferior to or less impartial than their colleagues who are members of the Faculty of Advocates.

Since the end of 2002, we have recruited advocate deputes from a broad pool of talent, which includes members of the Faculty of Advocates, solicitor advocates in private practice and members of the Crown Office and Procurator Fiscal Service.

Lord McCluskey concluded with a reference to the recent incident at Glasgow Airport, and the cross-Border response to that and to the related incidents in London. In doing so, he raised the scenario of a First Minister concluding that for political reasons a terrorist case should not be prosecuted in Scotland where the offence was perpetrated and asked whether the Lord Advocate would firmly tell him such decisions were for the Lord Advocate, not the First Minister. Having floated that scenario, Lord McCluskey considers it premature to inquire into what truly happened in the Glasgow incident.

If his premature question is directed to how the decision to transfer suspects was taken, the answer is simple: it was taken by me alone, following discussion with the Attorney General.

The decision was taken in the public interest, as part of a joint police investigation, to facilitate the wider investigation into the events in London and Glasgow and to allow, in due course, a single prosecution of these connected events.

Lord Advocate

next up, a supporting letter from from Paul McBride QC ...

Law officers are impartial

I refer to the article by Lord McCluskey (30 July) and letter from Elish Angiolini (31 July) regarding the role of the Lord Advocate. In my view, notwithstanding the fact the Lord Advocate's appointment is debated and approved by the Scottish Parliament, as is the Solicitor General's, it is clear they remain entirely independent as head of the prosecution system in this country. The profession in recent years, both on the defence and prosecution sides, has changed dramatically, with solicitor-advocates, advocates and procurators fiscal contributing to the justice system.

There are a significant number of members of the Faculty of Advocates who continue to make a contribution to the workings of the Crown Office, and the fact that neither law officer is currently a member of the Faculty of Advocates in no way diminishes their ability to take decisions in the public interest.

I have had the opportunity of dealing with both current law officers at different stages of their careers and mine over the past 20 years and have no hesitation in recording that, in respect of the issues they have had to consider, they have dealt with them in the same way as other law officers have over the years.

I do not accept the proposition that being drawn from a different branch of the profession renders a law officer incapable of impartiality. On the contrary, I think that all branches of the profession drawing on their different experiences can together make a significant contribution to the criminal justice system in Scotland.

Faculty of Advocates
Parliament House

and finally, a reply from Lord McCluskey, this time back in the House of Lords ...

We need to guarantee law officers' independence

The Lord Advocate (Letters, 1 August) and I are in complete agreement on one basic principle: the law officers, when exercising their responsibilities in relation to the prosecution of crime, must act independently of the political power. The Lord Advocate must exercise integrity, impartiality and independence of judgment in any prosecution matter.

I do not for one moment suggest the present law officers lack these qualities: I am confident they possess them. The point I make is that independence of the kind that is essential is not just a personal quality. It needs to be buttressed and supported institutionally and culturally. It is exactly the same with judges: their independence is not just personal; it is deeply rooted in tradition and guaranteed by unequalled security of tenure. High Court judges are members of the College of Justice and derive enormous strength from their daily interaction with colleagues.

The law officers do not have comparable institutional support. They have no security of tenure. Their ministerial colleagues are the very ones who might seek to influence their decisions. And they can be - and sometimes are - removed by ministers. So they need some other rock upon which they can stand firm if the political power seeks to interfere in the exercise of their prosecution function. In the past, that rock was provided by the whole culture, ethos and collegiate support of the Faculty of Advocates. The present law officers do not have the advantage of that background.

I do not suggest that "being drawn from a different branch of the profession renders a law officer incapable of impartiality", as Paul McBride (Letters, 2 August) infers. But without such a background (one that law officers invariably had), it is difficult to resist pressure from powerful politicians with a power of dismissal. This is a concern in all democracies. It may be remembered that Nixon exercised that power to dismiss his attorney general, Elliot Richardson, and his deputy, when they insisted on pursuing the investigation of the Watergate robbery, in which Nixon was implicated. They had the alternative to return to lucrative private practice, which no doubt strengthened their resolve. In Scotland, too, law officers have been removed without public explanation.

It is therefore naive to suppose the independence of law officers is totally secured by their personal qualities. If we are to continue to recruit law officers from the middle ranks of the public service, we need to find some reliable institutional way to buttress their position in a way that enables them to stand firm against inevitable pressures from political or other forces. At present, I cannot detect one.

On the second matter in issue, I accept the Lord Advocate took the decision to transfer the Glasgow suspects to England. What concerns me is those transferred were removed within 72 hours; there was no report they were brought before a court. At that stage, it would have been impossible for the Lord Advocate to be absolutely sure anyone would be prosecuted in England in connection with the alleged discovery of car bombs in London. If no prosecutions were to be pursued against those detained in England, what would happen to those transferred from Scotland? When one of the alleged conspirators was detained in Australia, there was no question of his being transferred to England.

In addition, anyone detained or arrested in Scotland has, by law, certain rights, including the right to a lawyer and to be brought before a court. If these rights were not accorded, because the Terrorism Acts applied, then serious questions arise. The price of liberty is eternal vigilance: we must maintain that vigilance, especially over those who exercise state power.

House of Lords

No comments: