The Turn of the Screw

Kenny McAskill MP

The Role of Lord Advocate of Scotland

By now, only a fool determined to be thought a complete idiot, or BBC’s scissors and paste freelump journalist Kirsty Wark and her repulsive tea shop harpies, think the Right Honourable Alex Salmond was not set up to be smeared, his High Court case a sham, all to see his reputation destroyed.

This phony, contrived episode of democracy was staged, an attempt to place in the mind of the average man and woman, and doubt in the mind of the educated classes, that people who lead movements for liberty are by nature corrupt and untrustworthy. As everybody knows, Westminster’s colonial rule is terribly benign, including when trying to wipe out its critics, at which point it is ‘cutting out a cancer’ from society to keep the rest of us healthy and untroubled citizens. Aye, that’ll be right.

The acrid stink of excreta from the Hunting of Salmond is a stain on Scotland’s political history. It will not be erased, but what should be is the dual and dishonourable role of the Lord Advocate, anachronistically both principal legal advisor to the Scottish Government and also head of the prosecution service, the Crown Office.

As the then Lord Advocate, this unacceptable state of affairs saw the short-fused, imperious James Wolffe QC become a willing pawn in the battle between the Murrells and justice. The main protagonists were First Minister Nicola Sturgeon and her husband, Peter Murrell, CEO of the SNP, together with their conniving civil service acolytes Leslie Evans and Liz Lloyd. And they in turn were aided and abetted by a supine, compliant Scottish press and Unionism’s warped sense of entitlement.

Wolffe did as was expected of him. As each event he controlled took the desired effect, he saw no reason to resign, nor did he exhibit a self-regard that might cause anyone else to avoid the fate that awaits them as the truth becomes evident – perpetual ignominy.

It follows that the two-faced and two-facing roles of the Lord Advocate must be separated, torn asunder – permanently. ALBA MP, Kenny McAskill used a recent Adjournment Debate in the House of Commons to put the case for honesty and dignity. His speech is republished below in its entirety – the sub-headings my insertion.


Mr Speaker,

I believe that many of the ills that afflict Scotland can be laid at the door of this Tory Government. One that hasn’t been elected in Scotland, not for the 55 years of hurt experienced by English football fans, but for 65 years. Longer than I’ve lived. Independence is therefore essential. But not all ills rest there and some along with our demons, such as alcohol and’ violence, can be and must be addressed by ourselves. The role of the Lord Advocate’s one.

The Lord Advocate and Law Officers along with Ministers are part of Scotland’s Offices of State, enshrined in the Scotland Act 1998 that established the Scottish Parliament. It’s why legislative change here’s required.

An urgent operation

I’m grateful for the opportunity to raise this, welcome the willingness of the UK Government to assist and hope that urgency will now be shown by the Scottish Government. Scottish democracy badly requires it.

Before the post of Secretary of State for Scotland was created the Lord Advocate was the power in the land, and some were despotic indeed. The transportation of Thomas Muir and the hanging and beheading of Baird Hardie and Wilson, the Scottish Radicals and 1820 Martyrs, are crimes that lie with them.

Thankfully the post evolved and became a purely legal role. But an anachronism was built in. For the postholder is both principal legal advisor to the Scottish Government yet also head of the prosecution service, or the Crown Office, as it’s known. Now that’s something neither replicated elsewhere in the UK nor indeed in any modern democracy. Conflict of interest precluding it. In England and Wales, an Attorney General advises Government from within. Meanwhile, a Head of the Prosecution Service is both separate and independent from government. But not so in Scotland and therein lies the problem. 

To be fair, apart from those despotic years post holders, irrespective of political hue and whether pre or post devolution, have acted with the impartiality expected. Modest steps were taken to mitigate the conflict of powers. 

Glaring faults

Under Nicola Sturgeon’s administration it has been brutally exposed by both Scottish Government and Crown Office actions, and with the Lord Advocate straddling both. Change is now needed and fast.

Firstly, there’s been an admission by the outgoing Lord Advocate of malicious prosecutions involving the administrators in the Rangers FC liquidation. That’s unprecedented in Scotland not just in recent years but since those days of the early 19th century. Even south of the border there have been none since 1999 and high-profile cases before such as Winston Silcott and Daniel Morgan were rare.

It has caused alarm with the public and been of huge reputational damage in an organisation where impartiality is imperative.

It has also caused consternation and anger within police and prosecution services, where the overwhelming majority of staff act without bias and free of any favour or prejudice. The reputation of the many has been traduced by a few.

It was the former Lord Advocates’ decision and seeking to cast blame on his predecessor was shameful and inadequate.

An inquiry is needed

An inquiry, perhaps even by a non-Scottish judicial figure, has been promised. Additionally, there’s the financial cost. Quantum of damages is for the court, but suggestions are the final bill could reach £60 or £80 million. 

This in an organisation with an annual budget of £300 million, struggling to meet existing commitments. The price will be paid by Scottish Taxpayers and the loss felt by hard pressed Scottish public services.

Secondly, and just as alarmingly has been the role of the Lord Advocate, and a coterie around him within the Crown Office, in the Alex Salmond case and the fallout from it. Another instance, of the public having to pay the price of government incompetence, with the legal expenses bill in the civil case amounting to £500,000.

But where again impartiality, as well as competence was raised. In the civil case the Presiding Judge described the Scottish Government’s actions as “unlawful, unfair, and tainted by apparent bias”.

Dunlop’s alarm

During proceedings senior external counsel, Roddy Dunlop QC, Dean of the Faculty of Advocates, expressed horror at the situation he and his colleague had been put in by their client, where they could no longer rest on pleadings they knew to be untrue. The client was the government and their senior legal advisor was the Lord Advocate.

A criminal case followed the failed civil case and prosecuted by the Crown Office where the same Lord Advocate remained in office. Despite growing pressures on police and prosecution nothing has been spared, nothing has been too trivial, but the targets always seem selective.

Portrayed as a serial killer

The Alex Salmond case saw resources deployed, normally reserved for a serious organised crime figure or a serial killer. Yet for charges that other than for who was being prosecuted, would either never have seen the light of day or only appeared in the lowest courts, not the High Court.

I say that as someone who was Justice Secretary for 71/2 years but was also a defence agent for 20. As it was, Mr Salmond was acquitted on all charges and by a majority female jury.

Now it’s standard practice in cases involving politicians that the Lord Advocate recuses himself from involvement in the consideration or prosecution of a case. And that was done here with no direct involvement in the prosecution.

But at the same time, he had been and was sitting on Scottish Government committees dealing with the civil case and where referral or prosecution was being actively sought and advised by the administration. 

Total recall

Let’s recall; A prosecution was sought by the Scottish Government as the actions of the Director of HR in contacting the police confirm.

Many complainers, indeed, most, were and remain at the heart of Government or are officials or otherwise closely linked with the Governing Party.

Prosecution was encouraged and pressed for by the Chief Executive of the governing party and who’s the First Minister’s husband.

Chinese walls

Chinese Walls and recusal are entirely inadequate. In one role the Lord Advocate was supporting a government pursuing prosecution, in another he was denying it was anything to do with him. A separation of powers this certainly wasn’t.

When James Wolffe appeared before the Holyrood committee considering the Salmond prosecution, he was frankly evasive and obfuscating, mirroring the actions of the Crown and Government in a lack of openness and transparency. There was neither contrition nor candour. Open Government this certainly was not.

And the fallout and failures continue to reverberate. Following on from the Alex Salmond case has been that of Craig Murray, a writer and former diplomat.

Now his conviction’s under appeal at the Supreme Court. Accordingly, I refrain from commenting on specifics of the case. Instead I restrict my remarks to the decision by the Crown to prosecute Mr Murray for jigsaw identification of complainers in the case.

But why was he prosecuted when others weren’t. In one case certainly overtly and in many others much more flagrantly than by Mr Murray but no action was taken against them.

Moreover, there were publications which in any other case would have constituted a clear contempt of court but that went without censure by the Crown. They included newspaper articles that were as prejudicial as I’ve ever seen. 

But they were supporting prosecution whereas Mr Murray though seeking to report factually wasn’t. It does seem that the Crown has one law for those supporting the government line and another for those who challenge it. 

Neale’s Intervention:

Now James Wolffe has stepped down as Lord Advocate, replaced by Dorothy Bain. Ms Bain has an illustrious record of service and I wish her well, but the structural flaw remains. 

Personnel changes no matter how merited cannot resolve the fundamental flaw of a lack of separation of powers. The Impartiality of the Crown’s an imperative in a democracy. It must be seen to act in the public interest not that of the government or its friends or allies.

The coterie who surrounded Mr Wolffe and who were instrumental in driving these policies and actions, often against the wishes and views of long serving staff still remain. In particular the Crown Agent Mr Harvie, the senior civil servant. Unusually amongst senior Crown staff his career hasn’t simply been as a Procurator Fiscal in Scotland but has included service and secondment to British Government Departments.

Situation critical

The situation is now critical as a police investigation has opened into the SNPs finances. The party leader is First Minister. Her husband is Chief Executive. This is a situation that would be intolerable in any public body or private company or even in a bowling or social club in any Scottish Town. The idea that the Chief Steward could be the spouse of the Treasurer would draw derision and rejection but not so in Scotland’s governing party.

Worsening that further’s the fact that all three members of the SNP Finance and Audit Committee resigned from their roles when refused information by the Chief Executive.

That has been followed by the resignation of the elected Treasurer, the Honourable Member for Dunfermline, for similar reasons.

Given what has happened, can the Scottish public be assured that the investigation will have access to all information and that any decision to prosecute or not, will be made on legal criteria and in the interests of justice. 

A failure of honesty

Protocols have failed, been breached or even abused. Interim steps can be taken to separate the roles. Perhaps, there should not just be a recusal as there no doubt will be by the Lord Advocate but as with the Rangers FC investigation, the bringing in of an external Judicial advisor.

Moreover, the [new] Lord Advocate has recused herself from involvement in the Rangers FC civil proceedings. Maybe she should recuse herself from all direct government involvement.

An Inhouse legal department exists. The duty to represent the Government in court and pursue constitutional challenges remains but that can be dealt with by external counsel.

Change and a separation of powers there must be. The twin roles of the Lord Advocate in prosecution and in advising government are an historical anachronism and entirely unsuited to a modern democracy. 

An horrific series of events

As a former Justice Secretary and someone who has practised law in Scotland for over 20 years and cherishes our distinct system, I’m appalled at what has happened. And I know that’s echoed in legal circles. 

I call upon the Minister to engage with the Scottish Government as a matter of urgency so that changes can be made to the 1998 Act. Changes providing for a complete separation of powers between the Head of the prosecution service and the senior government legal advisor. Every modern democracy does and so must Scotland.

The failures have been too many and the risks too great. For justice has not only to be done but must be seen to be done.

NOTE

SNP MP Anne McLaughlin walked out as McAskill spoke – she took over McAskill’s role as Shadow Justice Secretary when the SNP removed him from office – she presumably to report to Scotland’s First Minister, Nicola Sturgeon. Joanna Cherry, SNP MP QC, remained seated.

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11 Responses to The Turn of the Screw

  1. benmadigan says:

    I had my doubts about the Advocate General acting in Scotland’s interests as far back as the Gina Millar case in 2016/17

  2. kurikat says:

    Well done & well said Kenny, it is time someone spoke out & spoke up for the innocent people this SNP Leader and CEO have been trying hard to jail.. Reputations have been tarnished, but there will be none more so than the MURRELS when the truth the whole truth & nothing but the truth comes out..

  3. diabloandco says:

    What has happened to the few good folk left as SNP MSP’s? Have they lost their voices permanently? Are they tied up in a cellar with duct tape over their mouths ? Are they mice rather than men or women?
    Are they scared of losing their seats – in which case I could inform them that they are probably already lost due to the increasing number of disgusted ,distressed and enraged voters.

  4. tombkane says:

    It’s wonderful having Kenny McAskill doing this work for us. It must have been torture for such a principled former Justice Minister to watch the sleekit ways of James Wolffe from the benches.

    I don’t think there will be much written to top Gareth’s summation of the grevious damage that has been done to Scotland’s justice system by Nicola Sturgeon’s government. The hunting of Alex Salmond, the manner of the chase, the management of the people who had to watch it, the corruption of our media outlets, the focus of contempt of court on Craig Murray for prosecution – a man who took pains not to reveal details of the accusers while others did not… There are multiple, acrid stains on Scotland’s reputation. The smell may be disinfected but the marks will not be removed.

    Power does not much care about Truth. And many are whacked because of their compulsion of speaking truth to power.

    One thing is for sure. The truth will out.

  5. nallyanders says:

    Very well said Kenny. One of the long lasting consequences of the whole ‘stitch up’ is not only the damage of Alex’s reputation but also the loss of trust in the Judiciary.
    Dorothy Bain is a highly respected individual however, I fear Wolfe’s wilful lack of transparency and accountability will cast a shadow for years to come.
    An Independent Scotland cannot begin with corruption at it core.

  6. Robert McAllan says:

    SNP MP Anne McLaughlin she would be one o’ yon team players then? Kenny McAskill in his well presented speech indeed made the case for honesty and dignity within Scotland’s political and judicial system. It is to Ms McLaughlin’s shame that by walking out of the chamber she demonstrated contempt for those traits particularly as she now holds the position of SNP shadow Justice spokesperson at Westminster

    With one or perhaps two honourable exceptions seemingly at Westminster, the entire band of SNP elected parliamentary representatives have by their silence acquiesced and thereby endorsed the policy of the party leader and the CEO of that organisation in all its ramifications.

    Much and all as the truth may come out Scotland does not have the luxury of time. We must move swiftly to establish the ALBA Party as a credible force in realising Scotland as an Independent Nation. The SNP under the present leadership have spurned so many opportunities to lead from the front . Not only have they erased Alex Salmond from the party archive they have likewise erased honesty and integrity from the Scottish body politic, Shame, Shame, Hypocrites ALL of them!

  7. Stuart MacKay says:

    > BBC’s scissors and paste freelimp journalist Kirsty Wark and her repulsive tea shop harpies

    Gareth, you wield words like the mightiest of swords.

  8. Grouse Beater says:

    I am to please. 🙂

  9. Ronnie Anderson says:

    Anne McLaughin showing herself up as a ignorant woman she knows as much about the law as i know about deep sea diving and that’s Hee Haw , just ah place wummin an ah ken where ah wid place her

  10. lorncal says:

    “… BBC’s scissors and paste freelimp journalist Kirsty Wark and her repulsive tea shop harpies… ”

    Had to laugh. Brought back the memory of that lot who were to be so miserably disappointed. The lack of neutrality was so blatant.

    I agree with Mr MacAskill that the separation of powers is a necessity in an independent Scotland, and, indeed, the entire Scottish legal system needs a thorough overhaul, stripping it back to basics and putting it back together again, as Stair and Gordon both did. I also wish that one Scottish jurist would stand up and tell us that the Treaty is being breached almost daily now and that we need to rethink the entire Union. How any lawyer worth his or her salt can sit back and see what is being done to Scotland without opening his or her mouth on this issue, and on legally-dubious SNP policy matters, is an utter disgrace.

  11. jancowanrocketmailcom says:

    Great work! Thankful that honesty has triumphed at last. Now Scotland can begin to move forward by ejecting the Murrells and their corrupt friends. Then can we head for independence.

    THANK YOU KENNY AND GARETH!

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