25 August 2012

The Unpolitical: the SNP's pied Lord Advocate...

Cast your mind back through the Stygian fug of time, to the spring of 2007.  The SNP had, by the narrowest of margins, displaced the Labour Party's plurality in parliament, and Salmond was forming his first minority administration. Amongst his other selections for ministerial posts, there were the Scottish law officers to be appointed - the Lord Advocate and a Solicitor General. Salmond took the unprecedented step of keeping Jack McConnell's on, and Elish Angiolini stayed in office until the Holyrood election of 2011, to be replaced by her then Solicitor General and fellow career Crown Office prosecutor, Frank Mulholland.  All would not remain quite the same under the new, Nationalist dispensation, however. Salmond was keen that his law officers should enjoy an unprecedented "independence from the political process", establishing themselves as "independent of politics".

The upshot of this resolution was that Elish Angiolini was to be excluded from weekly cabinet meetings.  There have been no public statements, suggesting that the First Minister has altered his "depoliticisation" approach, and the appointment of Mulholland and Lesley Thomson after the 2011 Holyrood election - both career prosecutors with no notable connections to the SNP - strongly implied adherence to the 2007 resolution.

Why then, I wonder, is the Lord Advocate now such a familiar face around the cabinet table? I realise, of course, that your workaday cabinet meetings don't warrant photographs, and I've no sense whatever about the regularity with which Mr Mulholland may or may not attend these.  What we can say, however, is that the Lord Advocate (or occasionally, the Solicitor General) has been a conspicuous presence during the summer cabinet meetings held across Scotland this year and last (which are, incidentally, a splendid idea, as are the more or less unfettered public meetings which follow them). Most recently, we can spot him perched, extreme left at the meeting held in Renfrew just this week, on the 23rd August 2012:


Earlier this summer, Salmond convened the cabinet on Skye, on the 23rd July 2012. He's there too:


And the year before in Elgin on the 6th of September 2011:


And a handful of days before in Kirkcaldy on the 30th August 2011:


Ealier that month, another peregrinating meeting of the cabinet was held in Straraer. No sign of Frank Mulholland this time, but the Solicitor General, Lesley Thomson appears to have deputised in, and attended both the cabinet meeting and subsequent public event during the cabinet's sojourn on the 8th of August 2011:


Finally, a blurry but recognisable Mulholland was to be spotted again in Fort William on the 28th of July 2011, during a cabinet meeting held at the University of the Highlands and Islands:


His ubiquity during 2011 might be attributable to the Offensive Behaviour at Football Bill, which Mulholland enthusiastically championed for the Nationalist administration during its often rocky passage through Holyrood.  Hardly the activities of a law officer "independent of politics" in Salmond's terms, but the Lord Advocate is, after all, one of the Scottish ministers, a political appointee, and since he was content to get his hands mucky with the the politics of the reform, it seems eminently sensible to have him on hand during critical meetings. That doesn't so neatly explain his constant presence in the cabinet during the summer. Of which, lest we forget, he isn't a member, to ensure that he enjoys - and I quote - "independence from the political process".

I do sympathise with the predicament. The office of Lord Advocate is not one which any modern government, starting from first principles, would invent.  She serves both as head of the state prosecution services, of the Crown Office and Procurator Fiscal Service, but also as the senior legal adviser to Scottish ministers. In England, by contrast, the Attorney-General furnishes the legal advice, while the Crown Prosecution Service is headed up by the Director of Public Prosecutions, currently Keir Starmer QC. The Attorney-General retains a curious ragbag of constitutional duties - he must, for example, give his consent for certain prosecutions under the Contempt of Court Act - but the job's primary focus these days is in the provision of legal advice to Her Majesty's government in Westminster. Proposals to split up the two aspects of the Lord Advocate's job into its prosecutorial and advisory roles have been variously mooted, but as yet, have come to nothing. It's still a mingle-mangle of a job.

Unlike the First Minister, I've no principled objection to law officers being adherents to the political party of government. Last term, Dominic Grieve - the Tory MP currently serving as Attorney-General - gave a speech in Oxford, describing what he gets up to, and the quirks and qualities of his office.  I was particularly struck by one of his observations. It was the duty of the Attorney, he said, sometimes to tell his colleagues and to tell them frankly that some cherished proposal faced considerable legal difficulty.

Being a partisan political figure himself, Grieve suggested, his colleagues understood that this advice wasn't a nefarious attempt by an scheming civil service to block reform by conjuring up spurious legal impediments.  Instead, he said, his colleagues took his advice as a practically-minded ally, conversant in the law, keen actively to identify alternative ways of realising the collective political goals of the party. I wonder if all of them really do, but you could see the force of his argument.  While a partisan law officer has a duty faithfully to observe the law, a fellow Tory may be expected to problem-solve with more enthusiasm than a politically unaligned civil service flunky.

More and more, I'm persuaded that the SNP would have and would benefit from a change of tack, recognising that the government's law officers are more just prosecutors, and might benefit from more than just experience of our criminal law.  No harm to Mr Mulholland personally, but he's not the candidate anyone would pick to fulfil a politically-aligned legal advisory role across the broad civil, criminal and public law activities of government. At the moment, however, he's not only sitting surprisingly at the cabinet table with unexpected regularity. He sits awkwardly in the twilight, betwixt and between being a political figure, understood and treated as such, and the independent public prosecutor, above the political fray.

As the SNP have discovered, this very gloss of independence makes the Lord Advocate and Solicitor General politically useful figures to embroil in political controversies. Their opponents and the media struggle to know how to treat them.  Can you set them head-to-head against opposition MSPs who disagree with them? Should the interviewing tone be one of forensic critique and suspicion, as a politician would expect, or the more solicitous, less combative approach usually directed towards expert opinion? The Advocate General for Scotland, Jim Wallace, makes a pertinent point of contrast.  The problem is Mulholland's dappledness, his couple-colour of being now inside politics and sudden out of it, promoting government objectives then retreating to Olympian independence as the unaligned Crown functionary.  The combination is counter, original, spare, strange - and I think, increasingly rather strained.

4 comments :

  1. It is clearly very odd indeed to appoint as the Scottish Government's principal legal advisers lawyers whose whole career has been spent in the criminal prosecution service. In the old days when law officers were appointed from the practising Bar, the problem was sometimes the lack of criminal court experience in the appointees, given that ONE of their roles was to be at the political/policy apex of the Crown Office. Today that seems the only role for which the law officers are qualified. And even for that role, appointing persons from within the ranks of career prosecutors means that something of considerable value has been lost: the perspective of the intelligent outsider not imbued with culture and philosophy of the Department.

    As I have said before on your blog: "Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister)."

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  2. Mulholland's political hat?

    When the Scottish Lord Advocate, Frank Mulholland, travelled to Tripoli in May 2012 with FBI director Robert Mueller to meet Libyan Prime Minister Abdurahim el-Keib and justice minister Ali Hamiada Ashour, was he wearing his political hat?

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  3. Groundskeeper Willie25 August 2012 14:26

    Maybe it's tactical. Salmond's attempt at winning favour from those who might help him in his ambitions. Rather in the same way that his pronouncements on what would happen to the BBC if he had his way might help to curry favour among those movers and shakers in the Scottish media seeing his plans as a free ticket to a gravy train.

    Or is that unduly cynical?

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  4. LPW,

    Professor Black's observations on this issue are very insightful -

    "n the old days when law officers were appointed from the practising Bar, the problem was sometimes the lack of criminal court experience in the appointees, given that ONE of their roles was to be at the political/policy apex of the Crown Office. Today that seems the only role for which the law officers are qualified. And even for that role, appointing persons from within the ranks of career prosecutors means that something of considerable value has been lost: the perspective of the intelligent outsider not imbued with culture and philosophy of the Department."

    Bang on the money on both counts. The sole focus of the administration of justice in Scotland now seems to be the prosecution of crime, a focus which will not change while the Law Officers are drawn from the Fiscal Service.

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