Submissions, Evidence & Reform · Simon Peers
Written evidence submitted to the House of Commons Scottish Affairs Committee on 15 October 2026. Submission confirmation reference: FRC435755. This reproduction excludes only pagination and repeated running footers.
Written evidence: The dual role of the Lord Advocate Scottish Affairs Committee | 15 October 2026
Submitted by Simon Peers, East Lothian, Scotland — in a personal capacity
Inquiry: The dual role of the Lord Advocate | Submission deadline: 16 October 2026
Summary and principal recommendation I support an evidence-led examination of whether the Lord Advocate’s roles as the Scottish Government’s principal legal adviser and head of the Scottish public prosecution system should be separated. My central proposition is that prosecutorial independence and effective external accountability are compatible and both essential. Neither retention nor separation of the dual role should be judged merely by its constitutional appearance: the test must be whether the arrangements are demonstrably independent, accountable and capable of learning from failures.
I favour serious consideration of structural separation, provided the independent prosecution function is protected by law and accompanied by transparent recusal arrangements, proportionate independent scrutiny, and a verifiable system of corrective action. Separation on its own is not a solution to deficiencies in case review, disclosure, complaints or cross-agency learning.
1. Advantages, drawbacks, safeguards and alternatives The existing model offers continuity, senior legal expertise across government and prosecution, and an established route for safeguarding the rule of law. Its potential drawbacks include perceived conflicts between advising a government and prosecuting matters potentially connected to that government; opaque boundaries around information sharing; and public uncertainty about where responsibility lies. A perceived conflict is not proof of misconduct, but it is a legitimate design risk.
The statutory independence of prosecution decisions is fundamental but should not be treated as a complete substitute for public assurance. The adequacy of safeguards should be assessed through published protocols, auditable recusal decisions, independent review arrangements and evidence that problems identified are corrected.
The March 2026 research by Malcolm McMillan maps the historical, legal and constitutional context. Importantly, it does not recommend one future model. It therefore provides an essential factual foundation, not a ready-made answer. Options deserving comparison include retaining the dual role with strengthened safeguards, or separating prosecution leadership from the legal-advice function with clear statutory appointments, tenure, removal protections and reporting boundaries.
Potential unintended consequences of a split include contested jurisdictional boundaries, higher administrative costs, duplicated legal expertise, disrupted inter-agency coordination and inadvertent pressure on a newly appointed head of prosecutions. These should be addressed through transition planning and a post-implementation review, not used to avoid considering reform.
2. Conflicts of interest, recusal and Operation Branchform Recent controversies, including questions raised publicly about Operation Branchform, demonstrate why recusal must be more than a private decision whose reasoning cannot be meaningfully tested. I make no finding about the propriety of any individual conduct in that investigation. The Committee should establish what rules applied, whether they were followed, who verified compliance and what records can be published without compromising confidentiality.
Where a law officer is recused from a case, any permitted briefing to ministers should have a clear legal basis and documented purpose, recipient, content, authorisation and audit trail. The inquiry should examine whether confidential updates to the First Minister during Operation Branchform were consistent with the purpose and scope of the recusal, without presuming the answer. Publication of anonymised recusal statistics and a framework for independent procedural review could strengthen public confidence.
3. Accountability to Ministers, the Scottish Parliament and the UK Parliament The line between accountability and interference must be explicit. Ministers should not direct individual prosecution decisions. The Scottish Parliament should have meaningful scrutiny of the prosecution system’s administration, standards, resources, systemic risks and response to scrutiny, without adjudicating guilt or overruling the courts. The UK Parliament’s role should remain connected to matters within its constitutional or legislative competence, including any legislation necessary to change the law officers’ arrangements. Reporting responsibilities must be coordinated to avoid conflicting demands.
I propose that the Committee explore an independent procedural scrutiny mechanism with a defined threshold for serious maladministration or recurring systemic failures. One option to assess—not a claim about existing SPSO powers—would be a statutory route by which a competent independent body could require COPFS to arrange a fresh internal reconsideration of specified procedural concerns. The independent body would review process and verify that administrative actions occurred; prosecutorial discretion and court outcomes would remain with the lawful authorities. Safeguards would be needed against vexatious applications, collateral attacks on verdicts and duplication of appeal processes.
An effective learning cycle should record: (1) the concern or failure; (2) root-cause analysis; (3) corrective action; (4) an accountable owner and deadline; (5) implementation; (6) independent verification; and (7) a subsequent effectiveness review. Aggregate, properly contextualised
indicators could include avoidable adjournments, late disclosure, case changes, complaint resolution and recurrence. Acquittals alone are not a quality-failure metric.
4. Political or non-party legal advisers If the roles are separated, a politically accountable law officer who takes a party whip, as in other UK jurisdictions, should be considered alongside continued non-party appointments. The key tests are the quality and candour of legal advice, accountability, insulation of prosecution decisions from government, and public confidence. I do not assume that party affiliation necessarily undermines legal advice or that non-party appointment automatically guarantees independence. Any proposal should publish its rules on professional duties, conflicts, transparency and appointment.
5. Personal experience as a limited illustration I was prosecuted in Scotland during 2025–26 and was acquitted. I subsequently raised concerns about evidential assessment, disclosure, review decisions and responses to complaints. These remain contested matters; I do not invite this Committee to investigate my case, infer misconduct from an acquittal, or reach findings about any individual. My experience prompted a systemic question: who is responsible for reviewing a potentially avoidable process failure after the criminal charge has been resolved?
An acquittal answers whether the Crown ultimately proved the charge. It does not answer whether the prosecution system operated properly in deciding to continue the case to that point. A verdict must be respected, and only an appropriate mechanism—not an automatic review of every acquittal—should assess genuinely substantiated procedural concerns.
I approach the issue from over three decades in electronics, engineering-related commercial management and continuous improvement. In safety- and quality-conscious industries, closing a non-conformance report without verifying corrective action can leave a latent problem intact. The same risk exists in public administration. The cost of poor quality extends beyond the budget of the individual department: it includes repeated complaints, rework, proceedings, legal expenditure, lost productive time and harm to the people involved. Any reform evaluation should consider whole-system costs and benefits.
6. Recommendations to the Committee 1. Compare retention with enhanced safeguards against a statutory separation model, using explicit criteria of independence, transparency, effectiveness and cost.
2. Require published, independently auditable protocols for conflicts, recusals and ministerial case briefings, with suitable confidentiality protection.
3. Clarify which institutions scrutinise prosecution-system administration and which may never direct case outcomes.
4. Examine a narrowly defined independent trigger for procedural reconsideration, preserving COPFS’s lawful decision-making powers and judicial finality.
5. Require a closed-loop organisational-learning framework with a named owner, deadlines, verification and reporting on recurring failures.
6. Commission a transition and unintended-consequences assessment and review the effects of any reform after implementation.
The guiding principle is simple: “Lessons learned” should describe a verified outcome, not an institutional promise.
References and context House of Commons Scottish Affairs Committee, “The dual role of the Lord Advocate”, inquiry and call for evidence: https://committees.parliament.uk/work/9993/
Scottish Government, Malcolm McMillan, Report on the Roles and Functions of the Scottish Law Officers (10 March 2026), especially Chapters 9, 10 and 12: https://www.gov.scot/publications/report-roles-functions-scottish-law-officers/
Scottish Government, Scottish Law Officers Independent Review: Terms of Reference (29 September 2026): https://www.gov.scot/publications/scottish-law-officers-independent-review- terms-of-reference/
