How independent is Scotland’s justice system? Not very, according Ian Hamilton QC, who has written a powerful blog post on the matter. He focuses on the role of the Lord Advocate, who currently serves the dual role of chief prosecutor in Scotland and chief legal adviser to the Scottish government.
In the view of Hamilton and indeed many others this dual role, coupled with the way in which the Lord Advocate is appointed, leaves the door ajar to conflicts of interest, politically-motivated trials and injustice.
Hamilton — famous for repatriating the Stone of Scone from Westminster Abbey as a student in the 1950s and for taking RBS to task over misleading its own shareholders in January 2009 — said: “When the Minister for justice [Kenny MacAskill] shares a bed with the Lord Advocate [Elish Angioloni] the freedom of us all is in jeopardy.” (By the way I don’t think he means anything Biblical here!)
Hamilton’s solution is very simple. He proposes that, rather than being appointed by the Scottish Government as currently, the Lord Advocate should be appointed by the independent Judicial Appointments Board.
“The Lord Advocate must be independent of government. The only way the Minister for Justice can speak to the Lord Advocate is by Act of Parliament or by Orders in Council made thereunder. The Lord Advocate is not a tool of the government. The office is of prime independence. She decides who to prosecute and what crimes are important enough to be raised to High Court level where the punishment can be imprisonment for life.
Hamilton warned this could have Orwellian overtones, enabling the government to silence its critics through potentially foul means.
“There’s no better way for the government, any government, to silence its critics than by directing the Lord Advocate to prosecute one of us for almost any crime you care to name. The cost of the defence and the worry of it would be enough to silence most of us. Do not close your mind. We live in dangerous times.”
“The Lord Advocate is far from independent”
“Yet the Lord Advocate today is far from independent. She was a Labour appointment. Alex Salmond kept her on. She loves her job. She is, in a constitutional sense, in bed with the ministry.
“Although she will deny it, she will do the government’s bidding or lose the job she loves and which brings her great prestige. Nothing could be more dangerous for us all. I could give you examples of the overweening power of the state but I am on dangerous territory.”
He said one consequence of the Lord Advocate’s lack of independence is that “Those like me, who are always against the government, are in constant danger. The power of prosecution is too much power to entrust to any one person such as Alex Salmond or Kenny MacAskill.
“In a free society justice is independent of government, and don’t you forget it for a moment. I never have. A good lawyer is always against the government.”
Hamilton is by no means alone in calling for changes to the role of Lord Advocate. As part of the Greshornish House Accord of 16 September 2008, Professors Hans Köchler and Robert Black said: “It is inappropriate that the chief legal adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised.”
The Judges in Scotland’s supreme court are also coming around to this view. In an article in the Sunday Herald published on 2 November 2008, Tom Gordon wrote the judges were recommending that the Lord Advocate should cease to be the head of the public prosecution system and should act only as the Scottish Government’s chief legal adviser. This came in their submission to the Calman Commission, set up to consider how the devolution settlement between Scotland and the UK might be improved.
This blog post was published on 19 November 2009
Black’s comment is quite correct. If if had been a matter of fact that the LA was independent of Government, it would have been very much harder for those who instigated the Lockerbie plot to have carried it out on Scottish soil.
Those who wanted Lockerbie to happen knew they could rely on a complaisant and supine UK Government to do its bidding. However noble the Scottish Police and justice system were, what might be called the “forces of darkness” arranged for them to be stitched up beyond belief.
When the truth outs at it must, Scotland will have to have a revolution in its criminal procedures to make them safe from its enemies, and I don’t mean, primarily, the English.
Mr Norre,
The suggesting that the LA is not independent of government is connected to the Lockerbie bombing is complete nonsense. The Lockerbie bombing was not an attack on Scotland or even started on Scottish soil. It was an attack against America infiltrated by that bombing an American a plane that was just unfortunate for the town of Lockerbie to detonate above it and kill all those innocent on board and on the ground. Such an explosion could have happened well out over the Atlantic Ocean and it would have never been a matter for the Scottish Justice system or the LA of the day.
The LA office in Scotland however, is clearly selling and prosecuting government agenda not to also state the current LA on radical feminist view point. She is in short abusing her position to bring in her own politics as well as that of the government. If the government ask her to prosecute more of a certain crime (say Drink driving or domestic abuse) this is done for them. Thus she is the government heavy doing there bidding and in turn promoting her own feminist propaganda at the same tine whilst remaining completely unaccountable to the Scottish people. It is of great concern that the Scottish government will call upon the LA for advice on how to prosecute certain offences such as rape. These have always been political and emotive topics and to ask the prosecutor how to make this easier and what powers she needs without independent consultation is an extremely oppressive and dangerous precedent.
The real problem with Scotland at the moment is it is inexperience in self governance and really does not fully understand the principles of separation of powers. The Scottish parliament is also full of inexperienced individuals that done understand there remit or even these concepts thus it turns into a form of dictatorship as they seem to advance the thinking “were elected we can do as we please”. It is also intent in wanting to be like England, it sees what they do and want to do the same in the big time way. The problems with Scottish politics are that they are really “wee time” and always will be and until they understand that all oppression will continue.
The sooner that LA is gone the system is changed and the Scottish parliamentarian matures into a dignified respectable individual the better for the whole of Scotland and its international reputation.