Judicial Separation – Scotsman Article – 21 October 2021


The separation of powers between executive, legislature and judiciary’s viewed as fundamental in any democracy. In Scotland the issue has more focussed on the conflict caused by the twin roles of the Lord Advocate, being senior government legal advisor and head of the prosecution service. But the wider concept’s accepted by the Scottish Government even if the First Minister’s showing little signs of acting with any alacrity over the specifically Scottish issue.

But a new issue’s now arising and needs consideration. For both the current and past Lord Advocate have spouses who are sitting Judges. Now I state at the outset that there’s no suggestion whatsoever of any impropriety or any aspersions being cast on their integrity. Both Lady Wolffe, and Lord Turnbull are formidable legal figures in their own right, in situ on merit and deeply honourable.

This is no doubt a product of Scotland being a small jurisdiction and also a sign in many ways of progress as a society. Women have careers and are rightly being appointed to the most senior legal positions. When it’s a small world in which they circulate issues are bound to arise. Research conducted by the House of Commons Library shows that it hasn’t really happened at all in England.

But it has now in Scotland. Is there an issue? Lady Wolffe did have an early involvement in the Rangers FC case and Lord Turnbull was part of the court that heard Craig Murray’s appeal against conviction. Both of which cases have seen significant involvement by the Crown.

Now there’s no suggestion of anything untoward by either in those cases or indeed in any other they’ve been involved in. The First Minister hasn’t seemed too bothered about the Lord Advocate’s role but given her keeping her husband as SNP CEO when she’s Party leader, it’s not surprising.

However, justice has not only to be done but must be seen to be done. There’re many occupations where such a conflict of interest wouldn’t be countenanced. Can it be acceptable here? Maybe they should return to private practice whilst their spouses are in office.