Meeting of the Parliament (Hybrid)

Meeting date: Thursday, June 17, 2021

Official Report 1074KB pdf

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Law Officers

We move to the next item of business.

15:54  

It will give me great pleasure to move the motion seeking Parliament’s agreement to recommend to Her Majesty the Queen the appointment of a new Lord Advocate and a new Solicitor General for Scotland. Those posts have a very long history indeed. The position of Lord Advocate was established long before the 1707 union of Parliaments. Today, those roles remain crucial to the rule of law in Scotland.

The current combined prosecution and Government advisory functions of the law officers have endured since the establishment of this Parliament, under all Administrations. However, as members will be aware, the Government made a commitment at the recent election to consult on whether those dual functions should, in future, be separated. I believe that there is a strong prima facie case to be made for that. However, it is important that Parliament considers carefully the precise detail of any reform. Depending on the nature of it, change may require primary legislation, including possible amendment to the Scotland Act 1998. There are complex issues involved, but I can confirm that the Government will take forward a consultation in due course. Whatever the outcome of such a consultation, it will remain hugely important that Scotland has law officers of the very highest calibre. I have no doubt whatsoever that the individuals whom I am nominating today fulfil that requirement. Before I turn to the nominations, I take the opportunity, on behalf of Parliament, to pay tribute to and thank the departing Lord Advocate and Solicitor General.

James Wolffe has served as Lord Advocate in extraordinary times. The issues thrown up by Brexit and then the emergency legislation necessitated by the Covid pandemic have been complex and largely unprecedented. During this time, the Government has benefited enormously from his intellect and from the clarity, expertise and—at all times—scrupulous independence of his advice. James Wolffe has also represented the Government at several important hearings, including the Supreme Court cases on article 50, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the prorogation of the United Kingdom Parliament. Those are among the most significant constitutional cases of recent times and will surely take their place in the history books.

I also pay tribute to the way in which James Wolffe represented the Scottish Government when he was defending, in the Supreme Court, this Parliament’s legislation on minimum unit pricing for alcohol. In addition, he has worked to reduce the amount of time that it takes for the Crown Office to investigate deaths, and he has continued its work to improve the handling of cases relating to domestic abuse and violence against women. Any of those challenges and achievements in isolation would be significant; taken together, they represent a remarkable achievement and legacy.

For Alison Di Rollo, her time as Solicitor General has marked the end of 35 years as a first-class public prosecutor, including a spell as head of the national sexual crimes unit. For the past five years, she has served with distinction as Solicitor General. Her role, during that time, in establishing the expert group on preventing sexual offending involving children and young people will, I am sure, contribute to further improvements in the prevention and handling of such cases. She also represented the Crown Office in the Supreme Court, in the highly significant Sutherland case, which concerned evidence that was used to convict paedophiles.

For all that and so much more, Alison Di Rollo and James Wolffe have my thanks. They have both been outstanding public servants, and I am sure that they leave office with the very best wishes of members on all sides of the chamber.

I turn to my nominations for their replacements. My formal recommendation for Scotland’s new Lord Advocate is Dorothy Bain QC. Dorothy is, without doubt—I think that I can say this without fear of contradiction—one of Scotland’s most senior and highly respected lawyers. She has extensive experience in both civil and criminal law and has appeared in cases at all levels, including in the Court of Session, the High Court, the UK Supreme Court and the European Court of Human Rights. Dorothy is currently counsel to the Investigatory Powers Tribunal in Scotland and chair of the police appeals tribunal. She also spent nine years, from 2002 to 2011, as an advocate depute at the Crown Office. During that time, she made history by becoming the first woman to be appointed as principal advocate depute. She has conducted many complex prosecutions and appeals, including the first prosecution of Peter Tobin and the prosecutions relating to the operation algebra investigation, which resulted in the conviction of eight men for offences relating to the sexual abuse of children. From the comments that have been made since news of her nomination became known, it is very clear that Dorothy Bain is also highly respected, rightly, for her determination to speak up for the rights and the interests of the victims of crime. I believe that she will be a Lord Advocate of the very highest calibre.

My nomination for Solicitor General for Scotland is Ruth Charteris QC. Ruth is also a lawyer who commands respect, rightly, across the legal profession. She has been an advocate for more than 20 years. For eight of those years, she was a standing junior counsel for the Scottish Government, advising and representing the Government in a number of cases.

For the past year, she has served as advocate depute at the Crown Office. She also chairs the fitness to practise panel of the Scottish Social Services Council. Ruth will bring to the role of Solicitor General a valuable combination of public law and prosecution experience, and I am absolutely delighted to nominate her today.

Dorothy Bain and Ruth Charteris are both individuals of the highest ability and integrity and I believe that, together, they will make an outstanding and formidable team. It is worth noting that, if these appointments are approved by Parliament today, it will mark the first occasion on which the roles of Lord Advocate and Solicitor General for Scotland have both been held by women at the same time. That would represent a further welcome step towards more equal representation at the most senior levels in the legal profession and in public life more generally.

However, while that may be a welcome additional benefit of their appointments—and I think it is—it is not the reason for their appointments. Fundamentally, I am nominating Dorothy Bain and Ruth Charteris because they are both supremely well qualified for the roles that they are being asked to do. They have a wealth of professional experience that I am sure will benefit the Scottish Government, the Crown Office and the justice system in Scotland more generally.

It is with great pleasure, therefore, that I move,

That the Parliament agrees that it be recommended to Her Majesty that Dorothy Bain QC be appointed as the Lord Advocate and that Ruth Charteris QC be appointed as Solicitor General for Scotland.

15:01  

At the outset, I echo what the First Minister said and place on record my thanks to James Wolffe and Alison Di Rollo for their service over a particularly challenging number of years. I also join the First Minister in offering my congratulations and those of my party to Dorothy Bain on her appointment as Lord Advocate and to Ruth Charteris as she takes on the role of Solicitor General.

For the first time, both our top law officer positions in Scotland will be held by women, which not only makes history but provides the next generation of young women with new role models to look up to. However, there is absolutely no doubt that these appointments have been made because those are two incredibly well qualified individuals, with vast experience of Scotland’s legal system.

As the First Minister outlined, Dorothy Bain has conducted some of the most high-profile criminal prosecutions and appeals, including the prosecution of Peter Tobin, which ended in his conviction and a life sentence. Dorothy Bain is clearly held in extremely high regard by her colleagues in the legal profession, who have noted just how highly respected she is across the entire legal system. Some people I have spoken to just in the past couple of days have commented on both the appointments as being extremely strong. Dorothy Bain comes to her new role at a time when the importance of the Lord Advocate seems, over the past few years, to have taken on even more significance, and that is likely to continue.

Before I get to the challenges facing the new Lord Advocate, I put on record again that my party supports splitting up the role, as the First Minister mentioned in her remarks. We have raised concerns about the dual role since devolution began, and those concerns have only become more acute as time has passed. There is a serious conflict between the roles of head of the Crown Office and chief legal adviser to the Scottish Government. Although I am confident that Dorothy Bain will handle that conflict with dedication and professionalism, the problems created by the dual role cannot be rectified by the skill and commitment of the person holding the office. The issue is systemic, and it is inherent. By their nature, the dual roles at times conflict with each other. The Alex Salmond scandal exposed the weaknesses for all to see. Time and again, it seemed that the dual role had put people in an impossible position. They appeared destined to fail, because there was no way to fulfil both roles properly. The role of the Lord Advocate was stretched to its limits and found wanting, to the detriment of the Scottish public and of the women at the heart of that affair.

Separating the roles is essential to restore public confidence in the position. While we appreciate that these things cannot be rushed, there appears to be consensus in the Parliament on reform, and we look forward to the Scottish Government producing its consultation. While we wish Dorothy Bain great success, I hope that this is the last time that the Parliament appoints a Lord Advocate under the current dual remit .

The task facing both the new Lord Advocate and the new Solicitor General is enormous. It is well known that, in recent years, the Crown Office and the Lord Advocate have become embroiled in a series of scandals. Catastrophic failings have been the focal point of press attention for a number of years, and they are not going to go away. Malicious prosecutions over the Rangers case will end up costing the taxpayer a fortune, although we still do not know how much. We need transparency over those costs first and foremost but, in time, we need to know what went wrong and ensure that it never happens again.

My party has been vocal about the problems with fatal accident inquiries and the length of time that they often take—we must see action there.

There is also a far wider problem that has been exacerbated by the Covid pandemic: the backlog of trials has put the justice system under severe strain, and the law officers will have our support as they seek to tackle that issue.

On the horizon there is also the looming shadow of a referendum bill, which the Scottish Government seems determined to bring forward. I trust that in the new Lord Advocate we have someone with the experience to speak truth to power at this pivotal point in Scotland’s history as we seek to ensure that we rebuild from the Covid pandemic and focus on that more than anything else.

The challenges are numerous, and I applaud Dorothy Bain and Ruth Charteris for agreeing to take them on. My party will support them in their efforts to improve the Scottish legal system as they seek to restore public confidence at this crucial moment in our history.

15:06  

I join Nicola Sturgeon and Douglas Ross in thanking James Wolffe and Alison di Rollo for their dedicated service to our country. Both are highly respected in their professions and both have worked through challenging times. Our entire country owes them a debt of gratitude.

Part of the joy of devolution in the Scottish Parliament is the chance to reimagine how Scotland looks, sounds and feels. Historians might disagree on who exactly was the first Lord Advocate, but perhaps the strongest claim to that title is that of Sir Ross Grimley, who in 1483 served as legal adviser to King James III. Scotland welcomed the new Scottish Parliament in 1999, and it would have been unrecognisable to Sir Ross in almost every way. However, the post of Lord Advocate, despite having changed purpose and character in those 516 years, would still, in a few respects, have been familiar to Sir Ross. Most obviously, the post was always held by a man. In fact, even with the green shoots of a new type of Scottish politics sprouting in 1999, it took another eight years before the first woman would hold Scotland’s highest legal office.

When this process is over, it is likely that both Scotland’s most senior legal offices will be held by women, based not on tokenism but on merit. It is an important moment to remark on for a profession that, much like politics, still has a long way to go before it looks like the people whom it claims to serve.

Looking at the careers of both Dorothy Bain QC and Ruth Charteris QC, it is clear to me that Scotland will have in post fierce defenders of human rights and champions of victims’ voices. Their colleagues speak of two individuals who are driven by empathy and a desire for justice. We all in this Parliament and, indeed, this country need and want them to succeed.

There will, of course, be times when people in this place express dismay with slow and what too often appear to be cruel and impersonal wheels of justice. We will call, as in the cases of Emma Caldwell, Milly Main and far too many others, for the new Lord Advocate to act with compassion and purpose to ensure that not only is the law followed, but justice is done. Such interactions between the politicians and the courts are inevitable, but what is often at stake is the core of our sense of values and fairness in our country. None of that will be a reflection on the good characters, good values and good judgments of the two holders of those legal offices.

It is clear, however, that we need to look at the reform of the role of the Lord Advocate, as the First Minister and Douglas Ross have said. In fact, although much of modern Scotland would be alien to Sir Ross, the closeness of the chief legal officer charged with conducting Scotland’s public prosecutions to the nation’s political leadership might just be all too familiar. Since the time of Sir Ross, a legal principle has developed that, in matters of legal judgment, what matters is not just whether there is, in fact, bias, but whether there is the possible appearance of bias. More recent history has tipped that issue out of the seminar rooms of law schools on to the front pages of our newspapers. That is why we need to have serious discussions in the Parliament about the separation of power between the person who is in charge of prosecutions in Scotland and the chief legal adviser to the Government.

We will proudly support Dorothy Bain and Ruth Charteris in taking on those vital roles in Scotland’s public life, but we will also call on colleagues across the Parliament to make that contingent on reforming the offices. In doing so, we will all play a small part in changing the tone and tenor of Scotland’s history. We cannot lose sight of the injustices that still remain in our society and the work of building that more perfect nation is a collective duty for us all.

15:10  

On behalf of the Scottish Greens, I am pleased to support the nomination of Dorothy Bain QC as Lord Advocate and Ruth Charteris QC as Solicitor General.

Last week, I spoke in the chamber about how our justice system should exist to correct imbalances of power and about how the system should not be used disproportionately by the rich and powerful against those who are marginalised, left behind and powerless. These appointments will, I hope, allow us as a nation to shift the deeply embedded power imbalances that exist in our justice system. In the same way as this new Parliament better reflects the diversity of our country than ever before and promises to be a more progressive voice for Scotland, I hope that the today’s appointment of two outstanding women will allow us to look afresh at our justice system and reform it for the better.

Last week, I talked about the need to redress the power imbalance in our justice system and institutions that result in the woefully low rate of prosecution of men who rape and sexually assault women, and about the lack of trauma-informed support available to traumatised survivors. I talked about the fact that British and minority ethnic people are shamefully overrepresented in prisons, often subjected to a different standard by our police and courts systems and often disproportionately the victims of hate crime. I also talked about our prisons being overwhelmingly used to incarcerate the poor, while substantively failing to reduce reoffending. I am hopeful that the appointments today will allow us to act on those injustices.

I know that Dorothy Bain QC has a strong track record of prosecuting sexual offences and has done considerable work—often pro bono—on cases that have pushed forward the rights of women complainers in sexual crime cases. I am also aware of her determined work in support of victims of racially motivated violence, as exemplified by her support for the family of Sheku Bayoh, who, as I am sure that we all know, died after being pinned down by police while in custody. The choice to smear and criminalise him after his death compounds the initial injustice. Further, Dorothy Bain’s compassion, empathy and desire for justice for the families of those who have completed suicide in custody are exactly the qualities that we want in our Lord Advocate.

Later this afternoon, we will discuss how we tackle Scotland’s drug deaths crisis. I very much look forward to engaging with our two new senior law officers about a care-based approach of support and treatment rather than one of criminalisation. I hope that we as a country can focus on what is genuinely in the public interest regarding that crisis. Gillian Mackay and I will elaborate on this later today, but I hope that the new Lord Advocate will agree to roll out, as soon as possible, pre-arrest diversion schemes that do not result in a criminal record, to stop people’s lives being wrecked with such records.

We need a deep change in our approach to justice. We need to keep survivors of sexual and domestic violence safe. We need to recognise that black lives matter. We need to approach substance misuse as a public health and social justice issue. I look forward, with hope, to working with our new senior law officers.

15:13  

Next month will mark six years since the tragic deaths of Lamara Bell and John Yuill by the side of the M9 motorway. Presiding Officer, you will recall the circumstances. Despite calls to the police, it was days before the they responded, and despite numerous promises to hold a fatal accident inquiry, the families are still left without answers.

The tragedy of the deaths of Lamara Bell and John Yuill has been compounded by the snail’s pace of the Crown Office and Procurator Fiscal Service. That is no way to treat anyone. They are not alone; there is a long list of delays. Warm words are wholly inadequate. Reform is long overdue and that must be led by the new Lord Advocate.

Scotland has the worst drug deaths rate in the United Kingdom, Europe and the developed world. The rate in Scotland is four times that in England. In March, Parliament backed our motion to divert people gripped by drugs into treatment and to cease prosecution and imprisonment. We need a new approach from the Crown Office, which would be another huge responsibility for the new Lord Advocate.

I thank the outgoing Lord Advocate and Solicitor General for their personal service and commitment to the country, which have been remarkable. It is worth remembering that the problems that the Crown Office faces on fatal accident inquiries, drugs and other longstanding issues reach back to well before the current incumbent was in post. The Lord Advocate is appointed by and acts within the policy framework of the Scottish Government, so ministers cannot shrug their shoulders, as they, too, bear a heavy responsibility for the lack of reform in the Crown Office.

There is one specific reform for the First Minister: the role of Lord Advocate needs to be split to end the apparent conflicts of interest. It is no longer appropriate for the Lord Advocate to act as both a prosecutor and a politician sitting round the Cabinet table. The issue is not new but, in the latter days of the previous parliamentary session, the conflict of interest between those duties fell into sharp focus. Even the impression of a conflict undermines the integrity of the role. Separate positions, with an independent director of prosecutions to run the Crown Office and Procurator Fiscal Service, could bring focus to the task of recovery in justice and a healthy separation of powers.

I support confirmation hearings for the top roles in our public bodies. Confirmation hearings would enable MSPs to question the new postholder and debate the challenging issues that they would face—many of which have already been mentioned—as well as their suitability for the position. We should have had such hearings this afternoon for the Lord Advocate and the Solicitor General, rather than the rushed process that we are engaged in. It might even have been helpful for the nominees to face such a hearing. However, that is not open to us today.

We are fortunate to have such respected and talented nominees in Dorothy Bain and Ruth Charteris, who are widely respected in the legal profession and beyond. I thank them for their contributions so far, I wish them well and I look forward to working with them in partnership over the next years.

The question is, that motion S6M-00406, in the name of Nicola Sturgeon, on the appointment of law officers, be agreed to.

Motion agreed to,

That the Parliament agrees that it be recommended to Her Majesty that Dorothy Bain QC be appointed as the Lord Advocate and that Ruth Charteris QC be appointed as Solicitor General for Scotland.