The First Minister and fellow Ministers have taken up their post but there is still a post in the Cabinet to be filled (or indeed continued) which is just as important as the others - the Lord Advocate.
The Lord Advocate, Elish Angiolini will turn up for cabinet meetings until told otherwise. Indeed she was present in court at the swearing in of the First Minister but she owes her position to the outgoing First Minister, Jack McConnell and Cathy Jamieson, Justice Minister as does the Solicitor General (a Labour Party member).
The interesting question for the new administration is whether Alex Salmond and Ken McCaskill will follow the old Westminster creation and appoint their own person so that their legal adviser will be "on their side". In their efforts it will not just be a matter of garnering votes but there will always be present the possibility of mounting legal challenges for or against what they are doing. The Scotland Act which defines the powers of the Scottish Parliament and its relationship to Westminster is very fertile ground for such challenges. The Advocate General, a Labour appointee will still be looking after Westminster and will no doubt be preparing for clashes with an SNP led administration. There will also be many lawyers including my own firm who are quite ready and experienced to advise clients on the lawfulness or otherwise of any measures proposed. The SNP administration will need someone who has the time, drive, creativity, imagination and robustness to advise and if necessary represent them.
However, the Lord Advocate is not just a legal adviser but is also a public office. The Lord Advocate is head of our prosecution service and is also responsible for investigation of deaths. It actually really has nothing to do with politics. We should all be confident that if a question arises for investigation or prosecution that decision will be taken on the basis of evidence, law and the public interest and will have nothing to do with or be seen to do with political allegiance or influence. Our prosecution system is creaking already and could do without someone torn between representing an administration and trying to deal with our prosecution system. It will also do no good for that person who has that public office for any decision of theirs to be tainted with suspicions of political bias. Colin Boyd, a previous Lord Advocate was seen by many as too close to the Labour administration. Decisions under Elish Angiolini's watch have already been taken which raise political questions. There were no prosecutions over the Prestwick rendition flights and of course if there had been that would have been embarrassing to a Labour Party agenda and remind us that the Labour Government's role was the subject of debate and criticism. Indeed that was a criticism levelled by the SNP itself.
Now is the time for the SNP administration to break new ground. The role of legal advisor and the Lord Advocate should not be held by the same person. By all means they should seek to employ, as anyone should, the best legal advisers to represent them in any legal challenges which they want to mount or resist but that person should be entirely different to the one who has the public duty for prosecution and investigation of deaths. The appointment of the Lord Advocate like any public office should be transparent and open and where there is a better chance that such a person gets the job on merit and not because of political patronage. We have well established requirements for public appointment. They are based on the Nolan Report and take place under the Public Appointments and Public Bodies (Scotland) Act 2003 and we have a Commissioner for Public Appointments to oversee that. This ensures that appointments are made in a way that is open, transparent and merit based. There is also a code of conduct in accordance with the statutory obligations issued by the Commissioner. That way we are more likely to get the best person for the job and help them and ourselves in ensuring that any decision is seen to be taken independent of political influence. If Elish Angiolini thinks she is up for the job then she can apply as well.