Scotland’s malaise: The need for a full separation of powers

NICOLA STURGEON’S RESIGNATION IN 2023 signalled the beginning of the end of the SNP (as I suggested on Think Scotland), prompted as now seems clear by Operation Branchform, then we are now firmly in the dog days of a declining nationalist regime which has dominated Scottish politics for two decades. Unsurprisingly, perhaps, it feels as if we are experiencing a broader malaise in Scottish politics that extends beyond the fiddling of the SNP’s former chief executive or the party itself.

The Sun’s politics editor Chris Musson has traced John Swinney’s evolution into Mr Angry, who was on full display in last week’s First Minister’s Questions. Pressed by Labour and the Tories over his party’s complicity in the Peter Murrell scandal, the First Minister was on the ropes as never before. His ultimate defence was that he won the election on 7 May, proving “the people of Scotland are not listening to either [Mr Sarwar or Mr Findlay]”.

When he repeated that line for a second time, it was difficult not to hear the “Na, na, na, na” of the bully in the children’s playground, and it reminded me of my time on Fife Council when it was the go-to line of SNP councillors during less-than-edifying debates when they knew their arguments were weak or non-existent.

More seriously, it is the line beloved by dictators the world over, and given that the election delivered the worst result for the SNP since 2007 in terms of seats and constituency vote share, one might expect John Swinney to be more circumspect about leaning so heavily on it. Indeed, he surely realises it is hardly unprecedented for a party to win an election and then become massively unpopular for the rest of its term in office – as with the Conservatives after their 1992 win and now with Labour since their 2024 win.

Why did the Crown Office agree to the deferment?

Most egregiously, it seems the height of hubris on Swinney’s part given that May’s result has been repeatedly questioned in the light of Murrell’s court appearance. It was originally scheduled for February, but Murrell’s team asked for a deferment which the Crown Office agreed to. The date of the Holyrood election was  fixed so everyone knew the hearing – and the sensational revelations and huge negative publicity for the party which would inevitably follow – would be pushed back until after people had gone to the polls. There is no doubt at all that without that deferment the SNP would have won far fewer seats.

The key question is why the Crown Office agreed to the deferment. No one (outside the Crown Office) knows because the Crown Office is answerable to no one, with the possible exception of the King himself. It is, in all meaningful senses, above and beyond the law.

The suspicion, of course, is that the reason for the deferment was political expediency. In most jurisdictions, such a suspicion could be allayed by pointing to the strict separation of the judiciary from the government.

In Scotland, however, such a claim is undercut by the dual role of the Lord Advocate, the head of the Crown Office and Procurator Fiscal Service. The Lord Advocate is nominated by the First Minister – Nicola Sturgeon appointed the current Lord Advocate Dorothy Bain – and sits in the Scottish Government’s Cabinet. The Lord Advocate is both the Scottish Government’s chief legal adviser and the head of Scotland’s prosecution service.

While Dorothy Bain has said she recused herself from decisions about Operation Branchform and the Murrell case, it appears that both First Ministers Humza Yousaf and John Swinney were informed about developments long before they were publicly announced. So the supposed firewall between the Crown Office and Scottish Government is hardly impermeable. It is inevitable that senior legal and government officials interact.

Beyond the timing of Murrell’s court appearances, the Crown Office’s role is also now being questioned in the investigations and bringing of charges in Operation Branchform.

Justice must not only be independent, but must be seen to be independent

This police investigation was launched in the wake of the nationalist blogger Stuart Campbell revealing that some £660k in a ring-fenced fund for a second independence referendum campaign had mysteriously disappeared from SNP party accounts. The discovery of Murrell’s embezzlement was a by-product of this investigation, which has been closed, with no further charges brought. Any charges arising from the fraudulent spending of this ring-fenced fund would presumably have involved the then First Minister, Nicola Sturgeon, the then party treasurer Colin Beattie and possibly other party officials.

John Swinney declared last week that the £660k had been spent as part of the SNP’s wider activities in pursuit of independence (including election campaigning), rather than being held separately awaiting a specific referendum campaign.

Swinney’s admission prompted Campbell to write to Police Scotland and the Crown Office to request they “open a criminal investigation into the alleged misappropriation of funds donated to the Scottish National Party (SNP) on the basis that those funds would be held and applied for a specific, designated purpose”.

The very next day he received replies dismissing his request on the grounds that “Police Scotland have been advised that the information provided had already been investigated as part of our inquiries and no further action will be taken at this time”.

Presumably, the advice to close the original investigation and not re-open it came from the Crown Office. There are, indeed, legal grounds for arguing that the spending of such ring-fenced funds may not reach the legal threshold of fraud, as the lawyer Edward Graham has laid out.

Nevertheless, Campbell has gone on the offensive, retaining the services of Roddy Dunlop KC, Dean of the Faculty of Advocates, and repeating his request to Police Scotland to re-open a criminal investigation, with the threat of a crowd-funded judicial review.

However this plays out, whatever the truth about the Crown Office’s involvement and possible political motivations in the handling of Operation Branchform, the public perception is now widespread that it is not one hundred per cent free from political influence.

As Alex Salmond repeatedly said: even if individual Lord Advocates act with complete integrity, the structure itself creates an appearance of conflict. Justice must not only be independent, but must be seen to be independent. Indeed, when he became First Minister in 2007, he took a step towards depoliticising the office by ending the practice of the Lord Advocate routinely attending Cabinet. Following the complaints process and trial against him, Salmond led the call for the separation of roles in the Lord Advocate’s office.

Dorothy Bain has already announced her intention to step down as Lord Advocate. The time for a full separation of powers in Scotland via the removal of the Lord Advocate’s role as the government’s legal adviser is long overdue. The Westminster Government does not need to wait for any inquiry into the Murrell affair; it can begin to address the malaise in Scottish politics by grasping this nettle now.