NICOLA Sturgeon has said that care must be taken in reforming the dual role of the Lord Advocate as she accepted there is a case for updating the position.
Lord Advocate James Wolffe QC is set to stand down from the role that he was appointed to in 2016, prompting calls for the dual nature of the position to be ended.
The position currently sees a senior lawyer both heading up Scotland’s prosecution service and also advising ministers on legal manners, sitting in the cabinet as part of this.
READ MORE: Scotland's most senior law officer to stand down, Scottish Government confirms
Sturgeon was asked about the position during First Minister's Questions with LibDem MSP Liam McArthur saying the job should be split into two posts, with a new Director of Public Prosecutions position set up.
He also argued responsibility for Fatal Accident Inquiries should be removed from the Crown Office in order to end “scandalous” long waits for such hearings to be held.
McArthur said: “Reform is needed and the First Minister has the power to deliver change.”
In her response, Sturgeon noted that “since the dawn of devolution” the Lord Advocate has held this dual role.
But she added that she believed “there is a case for reform”, adding that in the SNP election manifesto her party had pledged to hold a consultation on this.
The First Minister however stressed that while there was a case for change “it is really important we take the time to get that right”.
She told MSPs: “Because of the dual role of law officers, law officers can be called to this Parliament to answer questions on all of the issues that perhaps fall within the prosecutorial function of the law officers, they can be questioned in this chamber.
“If we separate those roles then that may not be possible to do that in the future in the same way.
“That may be something Parliament is comfortable with, but it is one example of the need to take care over this and to make sure we get it right and we try to move forward on the basis of as much consensus and proper consideration as possible.”
In addition to Wolffe stepping down from the role of Lord Advocate, Alison Di Rollo is to resign from the position of Solicitor General.
Law lecturer and Sunday National columnist Andrew Tickell highlighted that changing the Lord Advocate's role may be difficult for Holyrood to do.
He described a section of the Scotland Act that states the Scottish Parliament does not have the "legislative competence" to remove the Lord Advocate's responsibilities for prosecutions and talked about how this could be updated.
This is coupled with the fact that other sections of the Scotland Act which presume the Lord Advocate is advising Scottish Ministers in a similar manner to the Attorney General at UK level. For example, he or she can refer Holyrood legislation to the Supreme Court for review. pic.twitter.com/ROHP0JeHcr
— PeatWorrier (@PeatWorrier) May 27, 2021
In a thread on Twitter, Tickell wrote: "Moderately interesting legal fact, since we're discussing it: under s.29 of the Scotland Act, Holyrood does not have the legislative competence to remove the Lord Advocate's responsibility for prosecutions in Scotland.
"This is coupled with the fact that other sections of the Scotland Act which presume the Lord Advocate is advising Scottish Ministers in a similar manner to the Attorney General at UK level. For example, he or she can refer Holyrood legislation to the Supreme Court for review.
"If the Lord Advocate was to be made responsible for prosecutions only, there would obviously be no sense in giving them power to refer Bills to the Supreme Court in this way. To change that would require primary legislation at Westminster to amend the Scotland Act all over again.
"Or! A section 30 order to change schedule 4 of the Scotland Act (which lists the bits of the Scotland Act Holyrood can't change) to allow Holyrood to change which law officers can refer Bills to the Supreme Court for scrutiny. The law of devolution is sometimes painful."
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