Lord Advocate talks to Franco-British Lawyers about Independence
15 September 2006
LORD ADVOCATE TALKS TO FRANCO-BRITISH LAWYERS ABOUT INDEPENDENCE
The Lord Advocate, Lord Boyd of Duncansby QC, today addressed the Franco-British Lawyers Society at the Scottish Parliament in Holyrood. He spoke about "Independence with Accountability", setting out why the principle that prosecution decisions should be taken independently of Government, pre and post devolution, is both fundamental and long-standing.
In speaking about the independence of the Lord Advocate pre devolution, Lord Boyd said:
"In 1959, there was a motion before the United Kingdom House of Commons that a Select Committee should inquire into a specific case and the circumstances in which it had been decided that no criminal proceedings were appropriate. As is often the case with incidents which attract great political or constitutional interest, the actual case was a fairly minor one of alleged assault by the police on a young boy. Harold McMillan, the Prime Minister of the day, explained the position of the Lord Advocate, and public prosecutors in general, to the House of Commons.
He made it clear that decisions as to whether any citizen should be prosecuted, or any prosecution discontinued, should be for the prosecuting authorities to determine on the merits of the case, without political or other pressure. He said it would be a "most dangerous deviation from this sound principle if a prosecution were to be instituted or abandoned as a result of political pressure or popular clamour".
When speaking about independence from government post devolution, Lord Boyd said:
"In truth, the Scotland Act actually contains a number of provisions designed to safeguard the independence of the Lord Advocate in discharging prosecutorial duties in the public interest. The tenure of the post is protected by section 29(2)(e) of the Act which states that it is outside the legislative competence of the Scottish Parliament to remove the Lord Advocate from being head of the systems of criminal prosecution and investigation of deaths in Scotland.
Of equal importance is section 48(5) of the Act. This section expressly confirms that the historical independence and discretion of the Lord Advocate will continue after devolution. It reads:
"Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person."
Together, these provisions have put in place explicit and robust protection of the Lord Advocate's traditional independence."
In summing up, Lord Boyd said:
"In any democracy, the prosecuting authority must be allowed to make decisions independently from government. A system of prosecution which does not have this freedom can rapidly become an instrument of oppression or of repression.
We in Scotland are proud of our prosecution service. It has evolved over the centuries into an organisation which balances independence with increasing accountability. I am proud of the progress we have made, particularly in recent years, but I see no reason for complacency. We must continue to examine and criticise what we do and how we do it, in order to meet the needs of the public in the 21st Century."
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