Evidence submitted by the Rt Hon Lord
Boyd of Duncansby QC
1. In May 1997 I was appointed Solicitor
General for Scotland, at that point a Ministerial position within
the UK Government. In May 1999 the position was transferred to
the Scottish Executive and I was re-appointed Solicitor General.
In February 2000 I was appointed Lord Advocate, a position I held
until October 2006. While the relationship between the Scottish
Law Officers and the Attorney General changed with devolution
it remained close and I had the privilege of working with and
observing three Attorney Generals in my time in office. My evidence
is based partly on my observations and partly on my own experience
as Lord Advocate.
2. I do not consider that the position of
the present Lord Advocate should be taken as a model for the second
option outlined in the Press Notice (the Attorney General is a
member of the Commons or Lords but is non political). In the first
place, with one exception in, I think, the early 1960's all Lord
Advocates up until now have been political appointments, many
of them very distinguished. The present Lord Advocate was only
appointed in October 2006 so it is perhaps a little early to see
it as a model for others to follow. Secondly, and far more importantly,
the Lord Advocate is, under the Scotland Act a Scottish Minister
and a member of the Scottish Executive. Like other Ministers she
is bound by the doctrine of collective responsibility except where
she is exercising her retained functions (head of the systems
of criminal prosecutions and investigation of deaths). In these
cases she acts independently of any other person. She may be independent
of party but she is not independent of the Executive and is privy
to many of the discussions as well as the legal issues surrounding
the development of policy. Thirdly it is my evidence that it is
of fundamental importance that the senior Law Officer should have
and retain the confidence of both his or her Ministerial colleagues
as well as the Parliament to which they are accountable. Elish
Angiolini served with distinction as Solicitor General for five
years before her appointment as Lord Advocate. She gained that
confidence occasionally attending Cabinet, frequently meeting
with other Ministerial colleagues, answering questions and participating
in debates in the Scottish Parliament as well as appearing in
court and undertaking public engagements. I think it would have
been very difficult for a non political person who had not had
that exposure to step up to be Lord Advocate. While the Solicitor
General will often succeed to being Lord Advocate that will not
always be possible.
3. I have read the evidence of the Attorney
General, as well as that of Lord Morris of Aberavon, Lord Mayhew
of Twysden, Lord Goodhart and Lord Mackay of Clashfern and am
in broad agreement with what is the general thrust of their evidence—that
the present position should remain. (I recognise that Lord Goodhart
looks for ways to strengthen the independence of the Attorney
and I disagree with him on the desirability of the Attorney sitting
in the Lords). Many of the points that I would make have already
been dealt with.
4. I am a strong believer in the value of
democratic accountability. The Lord Advocate is the Ministerial
head of the Crown Office and Procurator Fiscal Service, Scotland's
sole public prosecution service. I believe it suffered for many
years from having its Minister in government in London and in
the House of Lords. He was remote from the Service and remote
from Scottish Members of Parliament. Questions were answered in
the Commons on his behalf by a Minister in the Scottish Office,
a very unsatisfactory arrangement. As a result concerns about
the Service did not surface as they might have done. COPFS was
a small department in a large government structure. The Service
was under funded and under managed. While we were proud of our
tradition of public prosecution and had within the Service many
highly professional and dedicated public servants the Service
was progressively failing the public.
5. Following devolution these issues became
more and more apparent both in relation to particular cases that
caught public concern as well as more generally. Questions were
increasingly being asked in Parliament and the Justice Committee
commenced an Inquiry into the running of the Service. On the back
of this political and public concern I was able to undertake the
widest ranging programme of modernisation and reform of COPFS
ever. I do not believe that would have been possible, at least
to the same extent, were it not for devolution and the accountability
that it brought to the Law Officers.
6. I should also add that what was equally
important was the support from fellow Ministers, in particular
the First Minister, Jack McConnell, the Deputy First Minister
and Justice Minister, Jim Wallace and the Finance Minister, Andy
Kerr. In order to win that support it was important that I was
able to attend Cabinet and argue the case for a substantial increase
in resources. Reform of the COPFS became a political priority.
7. Accountability to Parliament is not simply
about attending occasionally and answering questions. The interaction
between Members of Parliament and the Law Officers is also of
great benefit. It allows MP's or MSP's to approach you informally
and raise a constituency or other matter and it allows the Law
Officer to gauge political reaction to current issues. That is
vital in being able to head off trouble. More generally it does
help inform considerations of the public interest when these matters
come to be considered eg in reflecting political and public concern
on the level of sentencing for certain offences.
8. The arguments in favour of an independent
Attorney suggest that it is possible to excise politics from his
responsibilities. Of course it is important that the Attorney
act independently and nowhere is this more important than when
taking individual decisions in relation to prosecutions. However
the prosecution of crime is a responsibility of the state and
it has a pivotal role in the criminal justice system. Apart from
ensuring that the system is democratically accountable it is important
to ensure that the policies that are pursued reflect public and
political concern. Recently these have centred on issues such
as giving reasons for prosecution decisions, ensuring that victims
are properly heard in the criminal justice system and the prosecution
of rape offences to name a few. Harriet Harman as Solicitor General
took initiatives on the prosecution of rape and on domestic violence.
Elish Angiolini as Solicitor General undertook a review of the
prosecution of rape in Scotland which coincided with other work
being done inside and outside the Executive on rape.
9. Early in 2006 public concern about the
level of knife crime gave rise to, amongst other things, a proposal
from the Home Office that there be an amnesty for those found
in possession of a knife while turning it in to a police station.
Ministers in Scotland were keen to follow but in Scotland the
Lord Advocate is the only Minister who can sanction an amnesty
from prosecution. I refused to agree until I was satisfied that
a review of the prosecution of knife crime within COPFS already
under way had been satisfactorily completed and I was in a position
to announce changes in prosecution policy. Fortunately I was able
to do so and the knife amnesty covered the whole of the UK. The
changes in prosecution policy which I announced was the most significant
part of a wide ranging set of Executive initiatives and was widely
covered in the press in England and Wales as well as in Scotland.
10. In giving opinions to government it
is I believe very helpful to be able to understand the political
background to the questions and the advice. I can think of one
example where advice was sought on a highly sensitive political
issue. An outside Counsel was engaged to give an opinion. His
initial advice, had it been followed, would have had very severe
political consequences. Before it went to Ministers it was seen
by Law Officers who were able to talk through the opinion and
find a way forward. The policy which flowed from that advice has
been operating satisfactorily for a number of years.
11. I would agree with Lord Goodhart when
he made the point that with the changes to the role of Lord Chancellor
it is more important than ever that there be within government
someone who can give prominence to the maintenance of the Rule
of Law. In my experience Ministers within the Scottish Executive
gave particular care to listen to the Lord Advocate on such issues.
As a senior lawyer within government the views of the Lord Advocate
were accorded respect.
12. I would be particularly concerned if
it was suggested that in any new arrangement superintendence of
the prosecution services could be transferred to the Ministry
of Justice or some other department with a non political Attorney
retaining responsibility for individual decisions. That would
weaken the role of the prosecution services within the criminal
justice system and give rise to concerns that there would be a
loss of independence.
13. There are, I believe, some initiatives
and reforms which could be considered. In the first place recent
debates have perhaps highlighted a lack of understanding of the
precise role of the Attorney in relation to prosecutions and measures
to better inform the public as well as Parliamentarians might
help. Secondly while it is in my view desirable that the Attorney
should come from the House of Commons I recognise that that will
not always be possible. Accordingly consideration might be give
to allowing the Attorney, when a member of the House of Lords,
to address the House of Commons and answer questions in the House.
I make this suggestion with some diffidence; I appreciate that
may have wider constitutional implications and may offend some
sensitivities in the House. Thirdly while I do not agree with
the suggestion that there be a routine publication of the Attorneys
opinions there may now be occasions where the executive could
be more forthcoming with either the opinion itself or an abstract
of it.
14. Finally on a general point it is of
course important that the Attorney General act with integrity
upholding the high traditions of the office and observing his
constitutional position. I cannot think of one Attorney who has
not done so. I recognise public concern over the Attorney's position
but that is not solved by trying to remove political controversy
from his office. Political accountability is a vital check on
his office and the departments for which he is responsible. Removing
that accountability will, in my view, simply frustrate political
debate and further disillusionment in the political process.
April 2007
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