Living legend and 2009's Lifetime Achievement recipient at the Law Awards of Scotland, Ian Hamilton QC, ponders the delicacy of the Lord Advocate's role.

A blogger has been charged with breach of the peace in relation to emails he sent to Mike Russell a member of the government. Beyond these bare facts I make no comment as the matter may be sub-judice.

(This is an absurdity. The case will never go before a jury and it is plain daft to think that any sheriff will be influenced by anything I write. However I fear our absurd laws of contempt. I make it clear that I comment only on the process of the law. I do not comment on the case.)

I saw this coming. A few months back I wrote about it. Here’s what I said.

“There is no better way for the government, any government, to silence its critics such as this blog 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.”

Here is the danger simply stated.

Who advises the government on matters of law?
The Lord Advocate

Who brings prosecutions in this country?
The Lord Advocate

Who employs the Lord Advocate?
The Government (Subject to ratification by Parliament)

Who pays the Lord Advocate
The Government

Who can sack the Lord Advocate?
The Government (Subject to ratification by Parliament)

Who can find a nice job for the Lord Advocate if she is sacked?
The Government

Who stands between us and the arbitrary authority of the Government?
The Lord Advocate if you believe in fairies.

How can the Lord Advocate protect us? By being totally independent of the Government as I have suggested should be the case elsewhere.

How does she protect us? By telling any Government minister who comes to her with a trivial complaint to go and chase himself.

How likely is she to do this if she relies on the Government for her job? Your answer is as good as mine but one thing is clear. No one should be put in the position of having the whole weight of the law in their hands to protect their employers or any one of them. The very least she should have is security of tenure.

You will note how carefully I have framed every word in this article. In a free society I shouldn’t have to. I should be free to criticize any officer of government who wields power. I therefore affirm the following:

In the whole matter:-

Elish Angiolini the Lord Advocate smells as sweetly as the perfume she buys across the counter in Boots the Chemists.

Mike Russell the Minister smells as sweetly as his aftershave and I will bring any girl who has ever kissed him to testify to this.

It’s the system that stinks.

Postscript
I should be grateful if those reading would remember that the Lord Advocate, despite her title, is an employee of the Government, not a member. It is not for her to solve the mystery of her job description which baffles us all. Kenny MacAskill, the Minister of Justice is the person responsible to the electorate for defining her position, not Elish Angiolini whom I feel is often unfairly blamed for making the best of an impossible position.

The position holds many anomolies. For example if Westminster and Scotland should be involved in litigation who represents whom? If Westminster wishes a search warrant, as Mrs Thatcher did in the Spycatcher case, would Westminster expect the Lord Advocate of Scotland to act? If Westminster believes that someone, for example myself, should be prosecuted for suborning soldiers from fighting in England’s wars and the Lord Advocate refuses to prosecute what remedy does Westminster have?

In all these matters the Advocate General is powerless, but Kenny MacAskill is not. It is for him to define the Lord Advocate’s duties and to seek amending legislation if necesary yet he remains silent.

Please respect Elish. To attack her is unfair. This is an interesting and important subject.

Ian