Living legend and 2009's Lifetime Achievement recipient at the Law Awards of Scotland, Ian Hamilton QC, questions the political impartiality of the Lord Advocate's role, and ponders why our states' police have become so degraded. 

When the minister for Justice shares a bed with the Lord Advocate the freedom of us all is in jeopardy. I made a joke of it before. I now point to the constitutional danger.

Consider this.

In any well ordered society the Lord Advocate has a different function from the Minister of Justice. When we were English ruled the Lord Advocate was technically a member of the government but for practical purposes he was independent. No one in London cared what happened in Scotland. All the Lord Advocate had to do was keep Scotland quiet. Not since we rose in arms in 1820 was the Lord Advocate called on by the London Government to keep Scotland quiet. This he did by raising a prosecution for treason felony, a crime unknown to Scots Law, and hanging a couple of us. (That Lord Advocate’s direct descendant holds high judicial office in Scotland today. Nothing changes.)

This case, ancient as it may seem, indicates the necessity of keeping the Lord Advocate out of the Justice Minister’s bed. The Lord Advocate must be independent of government. The only way the Minister for Justice can speak to the Lord Advocate is by Act of Parliament or by Orders in Council made thereunder. The Lord Advocate is not a tool of the government. The office is of prime independence. She decides who to prosecute and what crimes are important enough to be raised to High Court level where the punishment can be imprisonment for life. There is no better way for the government, any government, to silence its critics such as myself (or The Firm) than by directing the Lord Advocate to prosecute one of us for almost any crime you care to name. The cost of the defence and the worry of it would be enough to silence most of us. Do not close your mind. We live in dangerous times.

Yet the Lord Advocate today is far from independent. She was a Labour appointment. Alex Salmond kept her on. She loves her job. She is, in a constitutional sense, in bed with the ministry. Although she will deny it she will do the government’s bidding or lose the job she loves and which brings her great prestige. Nothing could be more dangerous for us all. I could give you examples of the overweening power of the state but I am on dangerous territory.

What is that danger? It is this. The power of prosecution in Scotland, so far from being independent, is in the hands of the state. Those like me, who are always against the government, are in constant danger. The power of prosecution is too much power to entrust to any one person such as Alex Salmond or Kenny MacAskill.

The position can easily be resolved. The Lord Advocate has more power to misuse than any judge. The way to defend us against the overweening power of the Lord Advocate is to have the appointment of the Lord Advocate and the Solicitor General taken out of Alex Salmond’s hands. It should be given to the Judicial Appointments Board. Even this may not be entirely safe but it is the best machinery that can be devised. By and large it has worked with the appointment of judges. Will anyone in Government put on a comment telling me why it won’t work for the appointment of the law officers, Lord Advocate and Solicitor General together?

What then is left for the minister of justice? The first thing he must do is keep away from the Lord Advocate. His is a merely administrative office. He has nothing to do with the Lord Advocate or with those who practice in the courts. Immediately after devolution I had a letter from the then Minister of Justice beginning, ‘Dear Colleague,’ I tore it up and told her (I think it was Cathy Jamieson) that I wasn’t her colleague and never dare address me as such again. Like the Lord Advocate no lawyer is a colleague of government. For the most part a lawyer’s duty is to stand between the public and the overweening powers of the state. When the Minister of Justice came to address us advocates I walked out, protesting that the only way she could speak to us was through Act of Parliament. No one joined me. Later I got some letters of support. The Dean of Faculty at the time also wrote. He concluded by congratulating me for upholding the independence of the profession. When we lawyers become chums of the government we are a danger to you all.

Kenny MacAskill has forgotten this. He pays court to the Lord Advocate. Many of us believe there are prosecutions which are politically driven. Mr Megrahi was one of them. It was before devolution but it is incredible that any independent Lord Advocate would institute proceedings in such an important case on such dubious and slender evidence. Even as I write one of our prominent politicians and government critics lies waiting trial on indictment. The case is sub judice so I cannot say more. But any prosecution of a public figure illustrates my point. The Ministry of Justice, or Cabinet Secretary as they now like to be called, should play a very minor part in our affairs. Reform of the licensing acts. Bravo Kenny! Increasing the unit price of alcohol! Two bravos, Kenny! Reform of our law courts and our law. Something long overdue. Keep Lord Gill’s report ever beside you. It’s a masterpiece. But keep your paws and your tongue away from the administration of justice as it stands. There is a distinction between reforming the law and the day to day administration of justice. If you can’t see that distinction you’re not fit for office. In a free society justice is independent of government, and don’t you forget it for a moment. I never have. A good lawyer is always against the government.

And while I am at it the police worry me almost as much as the government. Technically, they are ruled by the local authority but our Watch Committees seem to have disappeared. It is difficult to see who controls the police now. I suspect no one does. They have taken more power to themselves than was ever vested in them by act of parliament. God forbid that they should ever be controlled by government. The dangers of that are obvious yet there must be other ways.

Freed from all democratic control the police have constituted a body of senior policemen, superintendents and above. This society of senior policemen has become a second legislative chamber, more powerful, since answerable to no one, than parliament itself. It is this body which of itself, with power from no one in this democracy, has decreed that where there is a fatal road accident the road shall be closed for as long as they want it to be closed. The closure of a vital artery of commerce is now vested in a police officer who was never given the power by any democratically elected body to do so. There is no one with power to challenge them, except the press and they don’t. The Oban Times versus the police! Don’t make me laugh. The police have become a power in our land greater than any organ of democracy and we can do nothing about it. In the West Highlands the leisurely investigation of what the police call ‘a scene of crime’ isolates us more often and more surely than any landslide yet we have no redress. I know of one MSP who raised the matter with the police and was told to mind his own business.

Will someone in the police please tell me whence their power to close roads for eight to ten hours? Will someone in Government answer the other points I’ve raised?

I doubt it.

Ian's article appears on his blog at www.ianhamiltonqc.com/blog/