Inside Lord Advocate Dorothy Bain impossible position

heraldscotland.com · Mar 1, 2026 · Collected from GDELT

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Lord Advocate Dorothy Bain is used to standing before judges, not in the dock of political opinion. And yet, that is where Scotland’s most senior law officer now finds herself. Outside of government though, she is known as the advocate who led the prosecution against serial killer Peter Tobin in the High Court of Edinburgh in 2007. It was a landmark conviction, focusing on the 2006 murder of 23-year-old Angelika Kluk, and resulted in the first life sentence for the Scottish serial killer. She led the Crown cases on Operation Algebra, where eight men who had run Scotland’s largest paedophile network were convicted. In private practice in 2011, she condemned the Crown Office for not prosecuting Harry Clarke, the bin lorry driver who passed out at the wheel in Glasgow city centre, killing six people. But since taking over the role as the Scottish Government’s principal legal adviser in 2021, Ms Bain has fallen under intense scrutiny. That pressure is not limited to Ms Bain. It has become commonplace for anyone who holds the top role in recent years. The dual nature of the role, where Ms Bain is also the top law officer responsible for prosecutions in Scotland, makes that unavoidable. The conflict of interest is inherent and the blame for that does not lie with the SNP, despite the calls for the SNP to split the role. Read more: Should Lord Advocate quit after failing to give clarity over the Murrell memo mayhem? Lord Advocate 'wasn't aware' she told Swinney about Murrell case last year Lord Advocate 'wasn't aware' she told Swinney about Murrell case last year Lord Advocate denies 'political interference' after Murrell update Scottish Tory leader Russell Findlay accused the Lord Advocate of “corruption”, stating that Ms Bain gave John Swinney and his party the precise scale of the alleged embezzlement from Murrell – the former SNP chief executive – while “the public knew nothing”. “The Lord Advocate’s private memo gave John Swinney political advantage,” he said. Criticism has also been lobbied at the Lord Advocate because she was appointed by Nicola Sturgeon, the estranged wife of Mr Murrell. Mr Swinney, of course, was deputy under Ms Sturgeon and remains a close friend, with Mr Findlay arguing that Ms Sturgeon’s “right-hand man” had been given a “heads up about the criminal case involving her husband”. The Scottish Tory leader said Ms Bain was supposed to be “scrupulously politically neutral”, adding: “In the real world this smacks of corruption.” While the Lord Advocate provided Mr Swinney with a memo in mid-January, it later emerged that she had informed him almost a year ago, in March 2025. She has defended that position, sharing around 30 other cases where UK and Scottish Governments are told about major legal cases. But the reality is that this scrutiny will not end, leaving the Lord Advocate in a tough position that she will not be used to. Lord Advocates are not serving on a fixed term, and while she could remain in post following the Holyrood election, it would seem unlikely given the intense pressure being directed towards her. But the dual role Ms Bain performs is a historical problem. James Wolffe KC, who preceded Ms Bain in the top job, came under pressure for wearing the two hats over the Scottish Government’s mishandling of harassment claims against former first minister Alex Salmond. Top lawyer and Labour peer Lord Charles Falconer accused Mr Wolffe of being “corrupted by politics” in 2021 following scrutiny over the advice he gave to then-first minister Nicola Sturgeon. While the SNP has pledged to consult on reforming the role, we know this will not happen until the next Scottish parliamentary session. However, it is only the UK Government that can make that change to the Scotland Act 1998. But there has been little effort to change it since then. Read more: Jackie Baillie seeks ethics probe into Lord Advocate Bain revealed last March Murrell accused of embezzling almost £460,000 A Bill brought by then SNP MP Joanna Cherry fell in Westminster in 2024 and in Holyrood the SNP have delayed a consultation on the issue, while opposition parties seem to misunderstand the complexities of amending the role. Until it is resolved, the conflict of interest will haunt Ms Bain and her successors. The Lord Advocate is an experienced and competent lawyer, first becoming an advocate in 1994 and a Queen’s Counsel – now King’s Counsel – in 2007. She was the first and highest-ranking woman to hold the role as principal advocate depute and was thought to be the top contender to succeed Frank Mulholland as Solicitor General in 2011, but was not selected by the first-minister Alex Salmond. Senior lawyers, including Thomas Leonard Ross KC, have jumped to the defence of Ms Bain, warning against directing the criticism at the Lord Advocate and stating she was “trusted by every practising lawyer and every judge in the country”. I have personally seen the Lord Advocate in action, representing the Scottish Government in the Court of Session against the UK Government’s decision to use an unprecedented Section 35 order of the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill gaining royal assent. Her argument, put forward on behalf of Scottish ministers, was ultimately rejected by Lady Haldane but the respect she commanded from the court, and her legal opponents, was clear. It is right that the Scottish Government has a senior legal team able to represent them in complex cases, but that job should not be done by the Crown’s top law officer. Ms Bain’s reputation as a lawyer may endure. But the office she holds is no longer sustainable in its current form and the fallout will follow her until her tenure as Lord Advocate comes to an end. Will senior lawyers be queuing up to replace her when that time comes? It now feels inevitable that the dual role of the Lord Advocate will come to an end.