Lord Advocate Dorothy Bain criticises Scottish Parliament committee

Scotland's top law officer has rebuked a Holyrood committee over the contents of a report into children and the justice system.

Lord Advocate Dorothy Bain said a recommendation by the Education, Children and Young People Committee was "inappropriate".

In a letter to committee convener Sue Webber, she said she is "disappointed" that the call was made.

The 10-member panel published its stage one report into the Children (Care and Justice) (Scotland) Bill earlier this month. The bill proposes changes to the children's hearings system and other parts of the justice system relating to young people.

The report recommends a shift in guidelines on offences committed by children, saying that "when the Lord Advocate’s guidelines are next revisited, careful consideration is given as to how the views of the child or young person are factored into the procurator fiscal’s decision-making process" on whether or not prosecution is in the public interest and whether it should go to the courts or children's hearings system.

Bain, who is a minister in the Scottish Government, said the committee should take notice of "underlying issues of constitutional principle".

She said: "It is a fundamental principle of Scots constitutional law that, as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate takes decisions independently of any other person. That doctrine pre-dates devolution, but is reflected in section 48(5) of the Scotland Act 1998: 'Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.' 

"This principle is not restricted to independence in prosecutorial decision-making. It extends to the content of prosecution policy, for which I am responsible. It runs counter to this constitutional principle for the committee – or any other person – to seek to influence the content of prosecution policy, including the guidelines. 

"With respect, it was inappropriate for the committee to make a recommendation of this nature and I am disappointed that it did so."