The Lord Advocate gives a masterclass on how not to give evidence to a Parliamentary Committee

The Lord Advocate gives a masterclass on how not to give evidence to a Parliamentary Committee

by Dean M Thomson
article from Tuesday 2, March, 2021

WHEN THE LORD ADVOCATE appeared before the Scottish Parliament committee of inquiry today, after being accused by a former Lord Chancellor of having been “absent without leave”, you would have thought discretion, transparency and humbleness would have been in order. But no, Lord Advocate James Wolffe QC was in a positive state of outrage as he appeared before legislators. 

Any question of him, or the team at the Crown Office was dismissed as “improper and without foundation”. He claimed, “the Crown would not be party to any improper conduct”.

The only problem for the Lord Advocate is, the Crown Office has already conceded to having acted improperly elsewhere regarding the unrelated (to the inquiry) Rangers Administration. That sorry affair saw the Crown Office admit to ‘wrongful’ and ‘malicious’ prosecutions of innocent men. I do not know about you, but that sure smacks of a precedent having been set of ‘improper conduct’ by the Crown Office.

Questioning began with the apparent discrepancy in treatment of The Spectator and the Holyrood parliament relating to the publication of Alex Salmond’s evidence submission. Margaret Mitchell MSP; quite legitimately; questioned why The Spectator could publish content which only became objected to by the Crown Office once the Holyrood parliament tried to do it. The point was raised, "why the special restrictions on the parliament?" 

The Lord Advocate’s response was to argue, between sighs, that the Crown Office had merely expressed “concerns”, and that the decision of whether or not to publish was a matter for publishers and not him. But when the most senior law officer in all Scotland expresses “concern”, it rather goes without saying you ignore it at your own personal peril. It’s a bit like the stock phrase associated with the mafia, ‘Nice place you have here, it’d be a shame if something happened to it’. 

The issue of the Spectator was a common theme throughout the evidence session; an itch the Lord Advocate had to endure. Jackie Baillie MSP questioned if the Lord Advocate still stood by his claim that “no clearance or assurances were given by the Crown” to the Spectator. She wondered, smiling sweetly into the zoom meeting, “is this strictly accurate?” And she had good grounds to wonder. After all we now know that there was a pre-meeting, before the Lady Dorrian hearing, between Levy & McRae and Alex Prentice QC. Mr Prentice is reported in evidence before the committee as having said there were no other concerns with the Spectator article. "No clearances or assurances" Lord Advocate? Are you sure?

Indeed, the last time the Crown Office wrote to the Spectator as the Crown Office was back in 15th January. So if, as the Lord Advocate claimed in his evidence session, that new concerns were identified when parliament published the same stuff the Spectator had – why no fresh letters to the Spectator to express “concern”?

But let us move away from the Spectator, and the controversy surrounding the ‘un-publication’ of the Salmond submission. Murdo Fraser MSP focused on the Salmond allegation that documents had been withheld from him; and whether or not this would constitute a criminal offence. And this is where the Lord Advocate’s answers had all the quality of opacity. “I’m not going to discuss in the abstract what might or might not be a criminal offence” said the Lord Advocate. 

Undeterred by this response Murdo Fraser gamely pressed, “But Lord Advocate, with respect, you’re the head of the prosecution service in Scotland. I am asking you a very simple question: is failure to comply with a search warrant a criminal offence in Scots law? Yes or no?”

Alas the utterly grim answer from the Lord Advocate was “I’m not going to comment”. 

The Lord Advocate who heads Scotland's prosecutions service was unable to say if failure to obey a search warrant could ever be a criminal offence. I personally find this absurd. I think this moment in the evidence session highlights how the Lord Advocates’ role is manifestly conflicted from being both in the Scottish Government cabinet and heading an independent Crown Office. Frankly, it is parodic that the Lord Advocate is unable to say in general terms that yes, failing to obey a search warrant is a criminal offence. 

Also discussed in the evidence session was the troubling prospect that complainants had been potentially misled. Jackie Baillie asked: “In evidence to this committee from a civil servant, it was noted that you [Lord Advocate] had intervened and wanted complainers to make statements to the police. Did she imagine that?”

The Lord Advocate was unambiguous, “I have given no such direction. Nor would I have the power to do so.”

This is deeply troubling and worth pausing to reflect on.

A senior civil servant was saying to complainers that the Lord Advocate wanted them to make statements to the police. If the Lord Advocate never gave such an instruction, then that senior civil servant potentially misled complainers. How egregious and downright wicked would it be to mislead complainers into making statements to the police that they otherwise did not wish to make? 

Now if we shift to the matter of the Scottish Government’s legal advice concerning the disastrous Judicial Review; we discovered that John Swinney had not even bothered to ask the Lord Advocate for his permission to release it until Monday 1st of March. This is despite the Scottish parliament voting in November/December – twice – for the legal advice to be handed to the committee of inquiry. The Lord Advocate said, “a submission was presented to the law officers yesterday”. The Lord Advocate did try and defend ‘Honest John’ Swinney, explaining that ScotGov ministers had to weigh what was in the ‘public interest’. But the problem with that is, the only thing that changed between November and March was that ‘Honest John’ Swinney’s job was suddenly under threat from a vote of no confidence.

So much for careful considerations ‘weighing public interest’; the only interest being weighed here is what was in the best interest of the SNP Deputy First Minister.

As the Lord Advocate neared the end of his evidence session his personal sense of outrage seemed to get the better of him. He bristled furiously when Jackie Baillie MSP dared to ask some intrusive questions, and rebuked Margaret Mitchell for daring to interrupt him to suggest he was “unaccountable”. He finally managed to regain his stride before the end thanks in large part to the bench warmer that is SNP MSP Maureen Watt. She can best be described as a shining example of how it is possible to rise high in life without any discernible ability. She, amid rambling questions which included a reference to the Iraq War, stumbled her way to this stoater: “Can you talk us through the five redacted paragraphs in Salmond evidence?”

No Maureen ‘Columbo’ Watt, the Lord Advocate could not. You see, he could not get into the underlying rationale behind that because it would give rise to issues of disclosure. You know, the whole bit about it being redacted in an open evidence session…

As the whole thing finished up the Lord Advocate must have known that serious questions have now been raised. And the Crown Office that is his domain can no longer escape questions about how it operates, how transparent it is. My bet is that many of the issues raised in the evidence session will one day come back to haunt him. 

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Dean M Thomson graduated with a MSc in Development Studies from the University of Glasgow, going on to lecture 'Anglo-American Society and Culture' at Shangdong Agricultural University, Peoples Republic of China. Being fully TESOL qualified Dean has taught English for Academic Purposes and modules in critical thinking in Wuhan and Xian Ning, Hubei.

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