It is a long-standing but nevertheless unsatisfactory feature of Scots law that the Lord Advocate performs two quite incompatible roles. On the one hand, the Lord Advocate is the Head of the Scots state prosecution service, the Crown Office and Procurator Fiscal Service (COPFS) and yet he or she is also a minister of the Scottish Government and acts as its Chief Legal Advisor. This is an anomalous and unsatisfactory situation. There is inevitable conflict between the Lord Advocate’s role as Government member and senior legal advisor on the one hand, and that of chief prosecutor on the other. This potential conflict has long been a concern among legal scholars but has become a widespread political concern in recent years, especially in light of the Alex Salmond trial in 2020. Salmond was charged with 12 sexual offences and acquitted of all of them. In the wake of that trial there was much criticism of the Lord Advocate James Wolffe QC, not least from Salmond himself, on the dual role of prosecutor and minister and with the implication that Wolffe had acted improperly. While giving evidence to the Justice Committee of the Scottish Parliament in March 2021 on the handling of sexual misconduct complaints against Salmond when he was First Minister, Mr Wolffe took the opportunity to refute those allegations. He explained that he had delegated all decisions regarding the Salmond case to a senior prosecutor and neither he nor the Solicitor General took any part in the proceedings. He also expressly stated that "any suggestion from any quarter that the Crown's decision making has at any time been influenced by irrelevant considerations or improper motivations would be wholly without foundation. Insinuations or assertions to the contrary are baseless."
I will declare an interest here, in that I know James Wolffe slightly as an acquaintance, and I have always been of the view that he is extremely able with a razor-sharp legal mind and is also a man of complete integrity and honesty. Before he became Lord Advocate, Wolffe was elected as Dean of the Faculty of Advocates, which is concrete proof of the high regard in which his fellow advocates hold him. However, it is true that a perception of conflict of interests in the roles of Lord Advocate has arisen and it is therefore highly desirable that no further such apparent conflicts of interest arise in future. As the old saying has it, “justice must not be done but be seen to be done.”
If we accept that the roles of chief prosecutor and legal adviser should be separated, how do we achieve that goal? At first sight it seems that legislation would be necessary to split roles of prosecutor and legal adviser as the positions of the Lord Advocate and Head of Prosecution in Scotland are both guaranteed by the Scotland Act, s.48(5), and the chief prosecutor role can only be changed by the Westminster Parliament, s.29(2)(e) not by Holyrood. However, there is lacuna in the legislation which would allow the Scottish Government to separate the roles of prosecutor and minister/legal advisor; divide those roles between the two law officers, the Lord Advocate and the Solicitor General. Although traditionally the role of Solicitor General has been to act as deputy to the Lord Advocate, this is merely a matter of convention and nowhere is that specified in the Scotland Act, nor is their role in prosecution mandated by the Scotland Act. All the Act says is that the Solicitor General, like the Lord Advocate, is a minister, s. 44. I would therefore propose this simple solution to the conflict of roles. The Lord Advocate should continue to be Head of the Prosecution Service of Scotland, however he or she should cease to attend cabinet meetings (as happened when Salmond was First Minister) or to give legal advice to the Scottish Government. Instead he or she would focus solely on their role as Head of COPFS. The role of Government legal minister and advisor should be taken over by the Solicitor General, who would attend Cabinet and give such legal advice as the Government requires, not least in obtaining a lawful indyref2. There is little doubt that the battle to obtain a legal referendum will be fought out in the courts all the way up to the Supreme Court. It would be a distinct advantage to have a law officer who could focus all their intellectual efforts on that momentous litigation. There is nothing in the Scotland Act to prevent this change, it would merely be a functional division of roles which would resolve all problems of conflicts of interest.
So, assuming this approach was attractive to the Scottish Government, then a senior lawyer, preferably one with extensive criminal law experience, should be appointed Lord Advocate and a senior lawyer, preferably one with extensive civil law experience and one who is a supporter of the SNP should be appointed as Solicitor General. The two office bearers, Lord Advocate and Solicitor General, should in future have minimal professional dealings with each other, be in different buildings and perform their different roles quite independent of each other. Thus, the role of Lord Advocate would be solely to perform the role of Chief Prosecutor, free from all suspicion of political influence while the role of Solicitor General would be to act solely as Government minister and legal adviser and have nothing to do with prosecutions. Thus a complete separation of prosecution from politics would be achieved.