There have been a number of ‘prominent’ people opining that the Salmond affair is revealing fundamental weaknesses in the structuring of Scotland’s institutions. There can appear also to an implication here that such concerns – and perceived weaknesses – are present in Scotland but do not exist within the Westminster system. Unsurprisingly this, in my inexpert opinion, seems to be false.
For anyone interested in views on not dissimilar issues facing institutions within England – over the dual role of government law officers, their independent status and the publication (or not) by a government of its legal advice – I suggest reading this for useful perspective. Apologies for the length of this post but if like me you have little or no prior knowledge of the subject, you may find the information on England’s/Westminster’s practices interesting.
In England’s different system, as the article explains: “The Attorney General fulfils a number of constitutional roles: superintending the prosecution agencies together with a number of functions in relation to criminal proceedings, being the arbiter of the public interest in that role, and representing the public interest in civil proceedings.
“Most importantly, … , the Attorney General is the chief legal adviser to the government, and as such he has access to Cabinet and Cabinet papers. He is also a senior minister of the government.”
(The current Attorney General is The Rt Hon Suella Braverman QC MP.)
Ed: She is member of a religious sect accused of sex abuse and has been accused of anti-semitism:
“The current Attorney General is a member of the House of Commons, with separate duties and responsibilities to those he represents and all Attorneys General take the whip of the party forming the government.
“The Attorney General is therefore a public servant, with a duty to the public, but as a member of government he is responsible for government policy. There is an obvious tension between these roles.”
The author explains this ‘tension’ further: “.. when the Attorney General provides advice to the government, can the government truly be said to be his client, and he an independent legal adviser so that the advice he gives may be said to be legally privileged, or is the fact that the advice of the Attorney General to government is not disclosed save in exceptional circumstances not a result of legal privilege, but rather of parliamentary convention?
“In other words, can it thus be said that such advice does not have the unassailable quality of communications covered by legal privilege? In answering this question it is necessary to remind oneself of the context in which legal privilege may arise, and the policy reason for which it exists in that context.”
The article points the reader to the authority of Erskine May: here the position is stated as follows:
’By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside Government. This convention is referred to in paragraph 2.13 of the Ministerial Code. The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence. Therefore, the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceedings.’
It is clear from this article that there is a valid and serious – legal and non-partisan – debate being had with regard to the tension in the roles of the government law officer within the Westminster system.
Finally, to fill in more of this picture giving perspective, among the Attorney General post’s roles and responsibilities are the following (extracted from the UK Government website on ‘Ministerial role Attorney General’):
– ‘Specific statutory duty to superintend the discharge of duties by the Director of Public Prosecutions (who heads the Crown Prosecution Service) and the Director of the Serious Fraud Office.’
– ‘Government’s principal legal adviser dealing with (amongst others) questions of international law, human rights, devolution and COVID-19 issues.’
And not least given current matters in Scotland::
– ‘Public interest functions, for example, reference of unduly lenient sentences to the Court of Appeal, bringing proceedings for contempt of court …’