Ministers are being urged to carry out a “comprehensive” consultation on whether the country’s most senior prosecutor should continue with the joint role of legal adviser to the Scottish Government.
The Law Society of Scotland – which represents more than 14,000 solicitors – said the question of “whether the current constitutional arrangements remain the right ones for Scotland” should be examined.
Adding that changes to the existing arrangements would be “highly complex and take time to deliver”, the organisation insisted a “thorough public consultation is needed”.
The plea comes after the SNP’s 2021 Holyrood manifesto included a commitment to consult on whether the Lord Advocate’s dual role “should be separated”.
And Law Society of Scotland president Serena Sutherland said: “We believe the time is right to honour that commitment and begin a comprehensive public consultation.”
She spoke out on the issue after then Lord Advocate Dorothy Bain KC – who stepped down from the position recently – came in for criticism earlier this year when it emerged she had briefed First Minister John Swinney on the charges facing former SNP chief executive Peter Murrell almost a year before these were made public.
While concerns about this were raised in both Holyrood and the House of Commons, Mr Swinney at the time insisted that Ms Bain’s actions were “entirely appropriate”.
She has now stepped down from the post, replaced by Ruth Charteris KC, who previously served as Solicitor General for Scotland.
Currently the Lord Advocate acts as the head of Scotland’s independent prosecution service, and also advises the Scottish Government on legal issues, sitting in the Scottish cabinet.
Ms Sutherland said: “Scotland has been fortunate to have had a succession of distinguished law officers who have carried out their duties with professionalism, integrity and independence.
“The new Lord Advocate in particular is an experienced, highly respected and distinguished lawyer whose expertise and judgment will serve the office exceptionally well.
“Our country is also well served by an effective and skilled Crown Office with a long and proud track record of acting robustly and independently in prosecuting crime and investigating deaths.”
But she stated: “This issue is about constitutional, legal principles and the current system, not about the many committed lawyers who serve within it. The question is rather whether the current constitutional arrangements remain the right ones for Scotland.”
Any change would be highly complex and take time to deliver. That is precisely why a thorough public consultation is needed
The Law Society president said the issue centred on: “Should the same person serve as both a Scottish Government minister and its most senior legal adviser, while also heading the system of prosecution?”
She added: “That is an important constitutional question which deserves careful public consideration.”
Ms Sutherland continued: “Any change would be highly complex and take time to deliver. That is precisely why a thorough public consultation is needed.
“It should encourage a properly informed and wide-ranging discussion across the justice sector and wider society.
“Importantly, it would allow any future decisions to be based on objective evidence and constitutional principle, rather than a political agenda, and ultimately on what is in Scotland’s best interests.”
Ms Charteris said the post of Lord Advocate is one of “significant responsibility”, vowing to “discharge it with independence, integrity, and a clear focus on serving the public interest”.
She added: “Any consideration of reform is a matter for Parliament, and my responsibility is to carry out the role as it exists today.
“I welcome respectful and well-informed discussion about the office and its future. That discussion should be conducted in a way that maintains public confidence in the present system and the administration of justice.”
A Scottish Government spokesperson said: “As protected by the Scotland Act, the law officers operate with integrity and are entirely independent as they undertake their legal duties.
“A report on the law officers’ roles and functions, published earlier this year, sets out how and why the current system works and its strengths. Careful consideration would be required if there were to be any changes to the ways in which the law officers’ various functions were allocated.”