The comments on Lord Fraser, now Minister of State at the Scottish Office, followed the leaking of an internal police report which claimed the homosexuality of leading Scottish legal figures may have influenced the course of justice in certain prosecutions.
Although Lord Fraser's office would make no comment on the prospect of legal action, a senior source inside the Scottish Office confirmed that no statements were being made on the understanding that the matter would shortly become sub judice.
In a BBC television interview broadcast last month Lord Fraser said he had been informed of allegations made about himself which he would 'reflect upon' and then decide whether there were any steps that could be taken to remedy the situation. He may now have decided that court action is his only option.
As Lord Advocate, Lord Fraser was the senior Scottish law officer when the events in the leaked report were said to have taken place. An inquiry ordered by the present Lord Advocate, Lord Rodger of Earlsferry, is now investigating the content of the Lothian and Borders Police report, which alleges that a High Court judge, two sherrifs and other leading members of Scotland's legal fraternity may have allowed their homosexuality to influence the outcomes of five court cases during the 1980s.
One case highlighted in the report questioned the Crown Officer's decision to drop most of 57 charges in a case involving male homosexual prostitution.
Lord Fraser is not named in the report and it is unlikely that he has taken exception to comments about his competency as Lord Advocate or even as a Scottish Office minister. An Edinburgh advocate said: 'If he is attempting to sue to protect his reputation as an efficient minister there is every likelihood this would be laughed out of court. Ministers have already been told they should be more thick- skinned when it comes to criticism of their political abilities.'
In the interview Lord Fraser said he would happily co-operate with the inquiry by William Nimmo-Smith QC, a former advocate depute and a member of the Scottish Law Commission, and James Friel, regional procurator fiscal of North Strathclyde. 'I don't think I have done anything - or any of those who acted under me have done anything - to be ashamed of,' he said.
However, he is said to have been privately upset about remarks made by a senior police officer to directors and guests at a function at Hearts' football ground in Edinburgh. The remarks are thought to have been about Lord Fraser's private life.
Should the matter be brought to court it will indicate that attempts made by Lord Fraser to secure a public apology mediated through the Lothian and Borders Chief Constable, Sir William Sutherland, will have failed.
If court proceedings are initiated, Scots law does not demand the matter be taken all the way to the Court of Session. A public apology can often be accepted.