Principles are there to prevent suspicion
The Scottish Government has no-one to blame but itself for the yesterday's front pages (sample headline: Law Chief - I Am Not Corrupt) and the ongoing rumble of suspicion and doubt around the Lord Advocate. This suspicion is largely unfounded – but entirely justifiable at the same time. In fact the Scottish Government has maintained a position where suspicion is inevitable.
This is because Scotland's constitutional set-up has never followed the standard principles of the separation of powers which is assumed in almost all developed democracies. That the Scottish Government was, from the start of devolution until Brexit, almost certainly acting illegally under EU law is a stark admission that something was wrong.
The separation of powers concerned is the standard principle that the Executive should always be firewalled from the Judiciary. To put that in lay terms, a functioning democracy should have a clear, defined legal system which is entirely independent of any given government that is elected.
Government's propose law and the legislature (parliament) sets the law – but the executive should never be responsible for enacting the law. There are far too many conflicts of interest involved. Even with a nominal separation of powers in the US, currently the Department of Justice is being used as a 'private police force' by President Trump to enact retribution on is political enemies.
The constitutional situation in Scotland is worse. The head of the prosecution service is a Government Minister. The Lord Advocate sits in a party-political Cabinet and has a dual role providing legal advice to government while also being the head of the prosecution service.
The scope of potential conflicts of interest here are endless. In Scotland we have a position where the person ultimately responsible for prosecuting corruption in government would also be the person ultimately responsible for providing advice to the government on how to fight the charges. That is inherently wrong.
This is 'resolved' through a 'gentlemen's agreement' that the Lord Advocate will voluntarily recuse herself if she thinks there is a conflict of interests. But in the era of Mandelson and Epstein, gentlemanly promises from the ruling elite carry little weight.
It should be noted that for the first 20 years of devolution this proved mainly to be a theoretical and slightly obscure constitutional law debate. Indeed Common Weal sought to raise the issue a decade ago and gained no interest or traction at all.
From 2007 to 2014 the then-current administration had voluntarily chosen to exclude the Lord Advocate from Cabinet. It was an imperfect solution but it offered a degree of separation, at least in perception. That was reversed by the Sturgeon administration.
And then more than five years ago the prosecution service was drawn into a case which was inevitably highly political (the Salmond affair) and that has now spiralled into a wider problem with the investigation of Peter Murrell. A conflict of interest that seemed theoretical was made very tangible indeed.
Where it was possible to turn a blind eye to the blatant failure of the separation of powers when it involved prosecuting drug dealers or violent crime, as soon as prosecutions have a direct impact on the interests of the governing political party, suspicion is built in to the Scottish system.
It is simply not tenable for the execution of the law to be a function of a political cabinet and that is true no matter the situation. But when the situation is a series of prosecutions that go to the heart of the governing party in Scotland, the problem becomes acute.
This is now a significant constitutional problem – if not crisis. It doesn't matter that no evidence of wrongdoing has been presented, what matters is that a reasonable member of the public would look at this and be able to say 'I have solid reason to believe that justice is being pursued towards political ends here'. That is where we have now reached.
Rules and principles are there to protect honest governments. Of course the separation of powers is primarily to protect the public from politicised legal abuse, but it also acts to maintain a firewall that allows us to believe government is not acting corruptly. That firewall does not exist, so that suspicion cannot be allayed.
While the power to resolve this lies with Westminster, no-one believes that Westminster would hesitate to act on a request from the Scottish Government to resolve this and Westminster will be loath to interfere with the devolution settlement without the support of the Scottish Government.
But the Scottish Government has actively avoided making this request and has thereby protected and entrenched the current system And that is why it has no-one to blame but itself.