- 16 Aug 2021
The Lord Advocate is the senior of the two Scottish Law Officers. She is a Minister in the Scottish Government and the holder of a historic office which has a range of functions associated with the maintenance of the rule of law and the proper administration of justice. The role has four main components:
- head of the systems of criminal prosecution and investigation of deaths
- principal legal adviser to the Scottish Government
- representing the Scottish Government in civil proceedings
- representing the public interest in a range of statutory and common law civil and constitutional functions
In relation to criminal prosecutions and investigation of deaths the Law Officers have always acted independently of other Ministers and, indeed, of any other person. That duty is expressly recognised in s.48(5) of the Scotland Act 1998.
The Solicitor General is the Lord Advocate's deputy. She may discharge any of the Lord Advocate's functions where the office of Lord Advocate is vacant, the Lord Advocate is unable to act owing to absence or illness, or the Lord Advocate authorises the Solicitor General to act in any particular case (Law Officers Act 1944, s.2).
The Scotland Act makes important special provision for the role of the Lord Advocate. Her decisions as head of the systems of criminal prosecution and investigation of deaths are to continue to be taken independently of any other person (Scotland Act 1998 s.48(5)). It is outside the legislative competence of the Parliament to remove the Lord Advocate from her position as head of the systems of criminal prosecution and investigation of deaths (SA s.29(2)(e)). Further, like the other Law Officers in the UK, the Lord Advocate is given a particular role in relation to ensuring that legislation passed by the Scottish Parliament is within the legislative competence of the Parliament and has particular powers under the Scotland Act in relation to the resolution of legal questions about the devolved powers of Ministers and the Parliament ("devolution issues" - see section below on this topic).
The Law Officers are appointed by the Queen on the recommendation of the First Minister, with the agreement of the Parliament (SA s.48(1)). Unlike other Ministers, however, they cannot be removed from office by the First Minister without the approval of the Parliament (SA s.48(1)). They may, but need not, be MSPs.
They are members of and Ministers in the Scottish Government (SA s.44(1)(c)). As such they may exercise any of the functions of the Scottish Ministers - acts of Ministers bind them and vice versa (SA s.52(3) and (4)). This collective responsibility does not apply to the “retained" functions of the Lord Advocate - principally her functions in relation to prosecution and investigation of deaths, and any other functions conferred upon the Lord Advocate by name (SA s.52(5)(b) and (6)). These are exercised by the Lord Advocate (and the Solicitor General) alone.
There is no concept of a Scottish "Cabinet" in the Scotland Act. The fact of a Cabinet, and the Ministers who are members of it, are matters for the First Minister. The Lord Advocate is not a member of the Cabinet but sees all Cabinet papers, and she (or in her absence the Solicitor General) attends Cabinet meetings when required. In practice this means where Cabinet is discussing a matter with a legal aspect or the operations or funding of the Crown Office and Procurator Fiscal Service.
Accountability to the Scottish Parliament is an important aspect of the Lord Advocate's constitutional role. If not an MSP, a Law Officer is nevertheless entitled to participate in the proceedings of the Parliament but may not vote (SA s.27). A Law Officer can therefore be questioned by MSPs about the exercise of her functions, although she is not required to answer questions or produce documents relating to the operation of the system of criminal prosecution in any particular case where it is considered that it might prejudice criminal proceedings or would otherwise be contrary to the public interest (SA s.27(3)). Under the Parliament's Standing Orders, written questions about the operation of the systems of criminal prosecution and investigation of deaths are answerable only by the Law Officers, as are oral questions on those matters in all but exceptional circumstances (rules 13.5.1, 13.7.1 and 13.8.3).
A Law Officer may resign at any time and must do so if the Parliament resolves that the Government no longer enjoys the confidence of the Parliament (SA s.48(2)). Statutory provisions ensure that there is no interruption in the conduct of prosecutions where there is a change of incumbent (Criminal Procedure (Sc) Act 1995 s.287; SA s.48(3)).
The Scottish Ministerial Code
The Scottish Ministerial Code (February 2018) sets out rules and guidance in relation to the roles of the Scottish Law Officers.
The Code specifically sets out that in criminal proceedings the Law Officers act wholly independently of the Government (paragraph 2.42). Paragraph 2.8 excepts from collective responsibility the Lord Advocate's retained functions, including decisions taken in her capacity as head of the systems of prosecution and investigation of deaths.
It is a fundamental part of the role of the Law Officers to ensure that the Government acts lawfully at all times (see para 2.30). They have the ultimate responsibility for advising the Scottish Ministers on all matters relating to the law of Scotland. As the senior Law Officer to the Scottish Government the Lord Advocate provides legal advice on the full range of the Government's responsibilities, policies and legislation, including advice on the legal implications of any Government proposals. However, the Law Officers cannot and do not advise on every legal issue which may arise. The primary source of legal advice for the Scottish Government is the Scottish Government Legal Directorate (SGLD). Some legal advice is provided by counsel or by outsourced legal advisers, but the Lord Advocate remains responsible for it all.
The Code normally sets out guidance as to the circumstances in which the Law Officers should be consulted. The general principle is that the Law Officers must be consulted in good time before the Government is committed to significant decisions involving legal considerations. The process of obtaining an opinion of the Law Officers, where advice is expressly sought in that form, will normally be a request on a reference from SGLD. Submissions to Cabinet Secretaries and Ministers raising legal considerations are copied to the Law Officers for information or awareness. They will usually be briefed separately on the legal issues by SGLD (including by way of a general weekly update) and are able to intervene or seek further information as appropriate.
The Code gives examples of the kind of situation in which the advice of the Law Officers should be sought:
- the legal consequences of action by the Government might have important repercussions
- a legal adviser in the Scottish Government has doubts about the legality or constitutional propriety of proposed legislation or executive action
- Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations
- there is a particular legal difficulty that may raise sensitive policy issues
In practice what this tends to mean is that the Law Officers may be asked for a formal Opinion where the matter is difficult, or where it may be politically or presentationally sensitive or high profile.
The Code also refers to the role of Law Officers in relation to civil proceedings. In particular it sets out a distinction to be drawn between proceedings in which the Law Officers are involved in a representative capacity on behalf of the Government, and action undertaken by them in exercise of their various retained functions or on behalf of the general community to enforce the law as an end in itself.
Paragraphs 2.38 and 2.40 make it clear that the source or content of legal advice provided to the Scottish Government may not be publicly disclosed without the Law Officers' prior consent, which will only be granted where there are compelling reasons for disclosure in the particular (exceptional) circumstances.
Paragraph 11.16 requires Ministers to consult the Law Officers before they engage in civil proceedings in a personal capacity.
Paragraph 5.11 provides that the Lord Advocate must be consulted, or take the lead, where it is proposed to appoint a judge or legal officer to a Royal Commission or public inquiry.
Disclosure of Law Officers' advice
By long-standing convention, the fact that the Law Officers have or have not advised, or been asked to advise, on a particular matter, and the content of any advice, is not disclosed publicly without their prior consent (as explained above). The importance of this convention is recognised by the courts and is accorded some recognition in the exemption provided by section 29(1)(c) of the Freedom of Information (Scotland) Act 2002 for information relating to advice, or a request for advice, by the Law Officers (as well as in section 36(1) - confidentiality of communications in legal proceedings). This exemption is however subject to the public interest test in section 2 of that Act.
Civil functions of the Scottish Law Officers
The Lord Advocate's functions include acting as the principal legal adviser to the Scottish Government. Apart from the fact that she has specific responsibilities in relation to the legislative competence of Scottish legislation, she also advises on general legal issues and has general responsibility for the provision of legal advice to the Scottish Government. She has Ministerial responsibility for SGLD, which (as explained above) provides legal advice to the directorates of the Scottish Government on a daily basis, and for the Parliamentary Counsel Office, which drafts Bills for the Government's legislative programme.
The Lord Advocate is a member of the Cabinet Sub-Committee on Legislation and contributes in that and other ways (including by attendance at Ministerial Bill Management Meetings) to the planning, management and delivery of the Scottish Government's legislative programme. She oversees the drafting of Government Bills by Parliamentary Counsel in Parliamentary Counsel Office. She maintains an interest in the development of the devolved Scottish statute book, including matters such as the accessibility of legislation.
Before a Bill can be introduced in the Parliament by the Government, the Minister responsible must state that it is in his or her view within the legislative competence of the Parliament (SA s.31(1)). This view is reached on the advice of the Law Officers. This is the only case in which the convention against revealing the Law Officers' involvement in legal advice is routinely departed from.
The Lord Advocate also has the power to refer a Bill to the Supreme Court within the four week period after it is passed by the Parliament, for a decision whether the Bill or any of its provisions are outside legislative competence (SA s.33).
Much civil litigation involving the Scottish Ministers is conducted on behalf of Ministers by SGLD (although in some areas, such as commercial transactions or reparation actions, outside firms are used). SGLD remains responsible to the Lord Advocate for the conduct of all such litigation. Counsel are instructed by SGLD for all litigation in the Court of Session.
The selection of counsel is a matter for the Lord Advocate. She approves a list of junior counsel known as Standing Junior Counsel who may be instructed by SGLD in litigation involving the Scottish Government. In cases where that is considered appropriate senior counsel will also be instructed. The approval of the Lord Advocate is sought in relation to the appointment of senior counsel for a particular piece of litigation. On occasion one of the Law Officers will appear in court in person to represent the Scottish Ministers.
In conducting civil litigation SGLD proceeds on the instructions of individual Directorates subject to the overall supervision of the Law Officers. Any decisions as to the handling of a civil case involving the Scottish Government are for the Scottish Ministers collectively.
By statute, a party raising an action against the Scottish Government may do so against the Lord Advocate as representing it and an action by the Scottish Ministers may run in the name of the Lord Advocate (Crown Suits (Scotland) Act 1857 s.1). With some exceptions this applies in general to any part of the Scottish Administration.
The Scotland Act makes provision for the determination of devolution issues (in effect questions about the legislative competence of the Parliament or the devolved competence of Ministers - see Schedule 6, paragraph 1). Devolution issues which arise in litigation anywhere in the UK must be intimated to the Lord Advocate (as well as to the Advocate General for Scotland). The Lord Advocate (or the Advocate General) may also initiate proceedings for determination of a devolution issue (SA Schedule 6 paragraph 4(1)), and is empowered to refer devolution issues arising in litigation or otherwise to the Supreme Court (see SA Schedule 6, paragraphs 32-33).
The Lord Advocate also has a specific statutory or common law role in relation to a number of types of action. Commonly these will include matters such as actions for declarator of death or actions for proving the tenor of a will. It is very unusual for the Lord Advocate to enter appearance in such cases, although it may happen for example where an action for declarator of death has implications for any criminal investigation. It is for the Lord Advocate to ask the Court of Session to declare a person a "vexatious litigant" so that actions raised by that person are subject to special controls by the court (Courts Reform (Scotland) Act 2014, s.100). Amongst other functions she has specific duties under the Extradition Act 2003, and in relation to forced marriage protection orders under section 3 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011.
The Lord Advocate also has a general "public interest" role in litigation. For example, she may be entitled to intervene in litigation in the public interest where a proprietorial interest of the Crown or the interest of a public trust is involved. In a range of matters courts will sometimes require intimation to the Lord Advocate because they consider that there may be an element of public interest or public importance. It is unusual for the Lord Advocate to become involved in such cases, although the Law Hospital case in 1996 (involving withdrawal of nutrition from a patient who was in a persistent vegetative state) is one prominent example. The public interest role of the Lord Advocate was acknowledged by the House of Lords in Helow v Secretary of State for the Home Department  UKHL 62. The courts have also recognised the Lord Advocate as the appropriate respondent where the competence of an Act of the Scottish Parliament is challenged "as befits his role as a Scottish Law Officer acting in the public interest" - Adams v Advocate General 2003 SC 171.
The Lord Advocate also exercises the functions of the Scottish Ministers in relation to the reorganisation of public (non-charitable) trusts under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Again these are fairly unusual.
The Law Officers have a range of other functions. For example, they are ex officio Commissioners of Northern Lighthouses. They are both members of the Bible Board. The Lord Advocate is one of the Commissioners for the Keeping of the Regalia of Scotland. She provides advice to the Privy Council in relation to certain charters. The Solicitor General has certain ceremonial duties in relation to the General Assembly of the Church of Scotland.
Legal Secretariat to the Lord Advocate