Lord Advocate role needs re-thought: judiciary

The Sunday Herald for 2 November 2008 reported a submission by the Court of Session/High Court judges to the Calman Commission on Scottish Devolution suggesting that the Lord Advocate’s present role should be reformed to separate public prosecution from giving legal advice to government.

The judges perceive the Lord Advocate's membership of the Scottish Executive and combination of roles as giving rise to numerous devolution issues in criminal cases, often leading to lengthy appellate processes culminating often only with the Judicial Committee of the Privy Council in Westminster – a wholly unintended outcome of devolution and the cause of undue delays in the administration of criminal justice.

Alternatives to separating the roles include amending the Scotland Act 1998 to exempt the Lord Advocate’s actions as a prosecutor from the need to be ECHR-compliant, or changing the law on criminal appeals; but these may not be easy, and the first at least not within the competence of the Scottish Parliament.