Saturday 23 July 2022

Conflict of Interest

 The position of Lord Advocate is a curious one. Until Jack McConnell appointed Eilish Angiolini to the position in 2006, it has always required its holder to be a supporter, or better still a member, of the governing Party. But you required also to be a lawyer of standing in your own right. 

I had a lifetime ambition to be a member of the Scottish Parliament, even before there was such an institution, but had I ever reached such a position while Labour still ran Scotland, I would still  never have accepted such an appointment, even if offered. For while I continue to, immodestly, think I have the political skills for the rough and tumble, I was never of the legal eminence required for such a position. For to hold it you need not just the support of the government but the recognition of the legal profession and the judiciary that you are qualified for the job. That's why Roseanna Cunningham was never considered for the position after the SNP formed a government in 2007. She is a formidable politician and she is also a really good trial lawyer but she is not someone with the comprehensive stretch of knowledge to be a law officer. That is no insult to her when I concede a similar fault on my own part.

So, even when the Nats got in in 2007, Salmond asked Eilish to stay on and when she departed office for entirely personal reasons, asked her equally non political sidekick, Frank Mulholland, to replace her. I know them well enough to describe them both as friends. Since they both rose up through the Procurator Fiscal Service neither has never expressed an overt political opinion although I have always suspected Frank is a (soft) Nat and Eilish (whisper it) a liberal Tory.

But, on Frank going on to the bench, from 2016 we had James Wolfe as Lord Advocate and if he is a raving Nat then I am the King of Siam. And since 2021, we have had Dorothy Bain.

"Top lawyer" is a phrase much loved by the tabloids, usually followed by "stole money" or "slept with divorce client" or "struck off for lying to Court". Few of these people are in truth "top lawyers". But anyone who has held the office of Lord Advocate is truly a top lawyer. 

And the Lord Advocate is given a specific, guaranteed, role under the Scotland Act 1998. Not only must someone hold that role as the independent head of the prosecution service in Scotland, but they must also, in terms of the ministerial code, sign off on the legal propriety of any Bill introduced to Holyrood as being within devolved competence. 

And that is what Dorothy Bain has refused to do on the proposed "advisory" Referendum the SNP propose to introduce at Holyrood. 

But she has agreed to seek the opinion of the Supreme Court as to whether her own refusal to sign off on the Bill might be wrong. 

Now, I am not a top lawyer but I was taught forty years past that proper legal practice requires you to articulate both sides of the argument if making an argument in law before a court. Indeed I will do so (twice) in the next two weeks in cases of much lesser importance I am currently to conclude on the basis of more or less agreed facts but disputed law. 

So, top lawyer, Dorothy Bain, has done that in her published written submissions to the Supreme Court. You'll find this easily available in this internet age. And I would defy you to conclude, with reference to the terms of the Scotland Act 1998 and Pepper v Hart,  that she herself has not concluded the overwhelming argument is against her. I'm also not clear why, to give it bulk, these submissions consist in almost half of a recitation of history for those members of the Supreme Court who might have never gone to school or indeed read a newspaper. But possibly someone down the line of command was being paid by the page. Anyway, let's wait and see what Lord Reed thinks about that. 

But, anyway, that is not my concluding point. This morning, apparently, the SNP have decide to intervene in the Supreme Court, to argue that the case argued by the Lord Advocate, appointed by the SNP Government, is not the position of the SNP. An intervention to which the Lord Advocate must agree or object. I  might not be a top lawyer but I can certainly recognise a conflict of interest when I see one. So let us await events