Scottish Law Officers: roles and functions research report

Chapter 10 Legal bases for the Lord Advocate’s roles and functions

10.1 The legal bases for the Lord Advocate’s roles and functions are outlined in this Chapter. Also mentioned are any constitutional and legislative frameworks where further legal analysis may be required to identify any constraints in considering potential reform of any of these roles and functions.

Member of the Scottish Government and Ministerial collective responsibility

10.2 The Lord Advocate and the Solicitor General for Scotland are members of the Scottish Government, and are subject to collective Ministerial responsibility (except as regards their retained functions, as described below). The legal base for this role is section 44(1)(c) of the Scotland Act 1998.

10.3 The Scotland Act 1998 was amended by the Scotland Act 2016 to extend the list of provisions which can be modified by the Scottish Parliament (see paragraph 4 of Schedule 4 to the 1998 Act as amended). In relation to the Scottish Law Officers, this includes section 27(1) and (2) (participation in the Parliament); section 44(1)(a) to (c) and (2) about members of the Scottish Government, including the Law Officers; and section 48(2) to (4) on resignation of the Law Officers.

10.4 It may be noted that the list of provisions which can be modified by the Scottish Parliament does not include section 27(3) (in any proceedings in the Scottish Parliament, the Lord Advocate or Solicitor General may decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if she considers that answering the question or producing the document might prejudice criminal proceedings in that case, or would otherwise be contrary to the public interest); and it does not include section 48(1) (providing for the appointment or removal of a person as the Lord Advocate or Solicitor General for Scotland) or section 48(5) (providing for the continued independence of the Lord Advocate in taking any decision as head of the system of criminal prosecution and investigation of deaths in Scotland).

Minister or principal legal adviser responsible for legal advice to the Scottish Government; the constitutional role of upholding the rule of law; and representing the public interest

10.5 The function of giving legal advice to the Government appears to be based on the appointment by the Sovereign by Royal Warrant as Lord Advocate and on long-standing convention. This may also be the case as regards the Lord Advocate’s vital constitutional role of upholding the rule of law, and representing the public interest (where that is not based on a specific statute).

10.6. Section 52(5)(b) as read with subsection (6) of the Scotland Act 1998 provides that the Scottish Ministers collectively are not liable for the exercise of retained functions by the Lord Advocate alone. A retained function is a function exercised by the Lord Advocate before devolution which transferred to the Lord Advocate alone and did not transfer to Scottish Ministers under section 53 of the Scotland Act 1998, and a new retained function conferred on the Lord Advocate by virtue of section 52(6)(b).

10.7 One issue to explore is whether the Scottish Parliament has legislative competence to reform these retained functions of the Lord Advocate. Section 29(2)(c) provides that a provision is outside the competence of the Parliament if it is in breach of the restrictions in Schedule 4.

Head of the system of criminal prosecution

10.8 The role of the head of the system for the prosecution of crime is a retained function under the Scotland Act 1998. Section 29(2)(e) of the 1998 Act states that a provision is outside the legislative competence of the Scottish Parliament if it would remove the Lord Advocate from the position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Head of the system for investigating deaths

10.9 The role of the head of the system for investigating deaths is a retained function under the Scotland Act 1998. Section 29(2)(e) of the 1998 Act states that a provision is outside the legislative competence of the Scottish Parliament if it would remove the Lord Advocate from the position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Legislative competence/devolution issues/protected subject-matters functions

10.10 The legal base for the Lord Advocate’s responsibilities in relation to legislative competence and devolution issues, and protected subject-matters, is contained in the Scotland Act 1998 as amended, sections 32A, 33, 98 and Schedule 6.

10.11 The provisions in question are not specified in the Scotland Act 1998 as ones which the Scottish Parliament can modify.

10.12 It may be noted that a Private Member’s Bill was introduced to the Westminster Parliament by Joanna Cherry MP on 10 January 2024 under the Ten Minute Rule, the Scottish Law Officers (Devolution) Bill. The long title of the Bill is “to amend the Scotland Act 1998 to grant to the Scottish Parliament legislative competence in respect of the role and functions of the Scottish Law Officers, and for connected purposes”.^[105] Given the dissolution of Parliament on 30 May 2024, the Bill made no further progress.

10.13 In introducing the Bill, Joanna Cherry said:

“My Bill is designed to give the Scottish Parliament the power to amend the role of Scotland’s Law Officers, including dividing the role of the Lord Advocate into two separate jobs: one as head of Scotland’s prosecution service, and the other as a Minister of the Scottish Government and its chief legal adviser. The present Lord Advocate performs both roles, and both legal scholars and politicians are becoming increasingly concerned that that may give rise to a conflict of interest, or at the very least a perception of a conflict of interest. I wish to stress that no criticism of the current or previous Lord Advocate, or indeed of the current SNP Government, should be inferred, because the dual role of the Lord Advocate is a historical anachronism that predates devolution.”

Other public interest and miscellaneous functions

10.14 The legal base for many of these specific functions in the public interest, and these miscellaneous functions, is the statutory provision providing for the particular function of the Lord Advocate in question. The list of functions and the underlying statutory provisions is set out above in Chapter 7.

10.15 Certain functions under these enactments may be reserved matters under the Scotland Act 1998, for example functions under the Merchant Shipping Act 1995.

101.16 Other enactments specified relate to devolved matters.

10.17 Otherwise, in certain cases the legal base is the method of appointment of the Lord Advocate to the role, for example appointment ex officio in terms of a Royal Warrant, as in the case of the role of Commissioner for the Keeping of the Regalia of Scotland. For other functions, the legal base may derive from the warrant of office or at common law.

Ministerial portfolio responsibility

10.18 The Lord Advocate has Ministerial portfolio responsibility for the non-conviction based civil recovery scheme, and for small public trusts. As regards the non-conviction based civil recovery scheme, the enforcement authority for Scotland is the Scottish Ministers under the Proceeds of Crime Act 2002, an Act of the UK Parliament. This role has been allocated to the Lord Advocate. The First Minister is responsible for allocating portfolio responsibilities to Scottish Ministers.

10.19 There are other current duties of the Lord Advocate without a statutory or common law basis. These include where the Lord Advocate has been allocated a role by the First Minister, such as attendance at Cabinet; membership of the Cabinet Sub-Committee on Legislation; and attendance at Ministerial Bill Management meetings. These clearly reflect a recognition of the Lord Advocate’s various existing functions.

Reforms not requiring legislation

10.20 The terms of reference for this Report raise the issue of what reforms may be achieved by administrative means. Certain reforms, if thought desirable, may be possible by making administrative arrangements which do not bring into play legal constraints such as legal competence. One example is mentioned above, the allocation of responsibilities by the First Minister. Another example may be to consider whether any protocols could be drawn up on particular matters, and made public in the interests of transparency.

10.21 If it is considered that there may be an issue as to public perception of potential conflict of interest as regards decisions to prosecute, one approach (noted in the insights set out in Chapter 11) is that the current Scottish Law Officer and COPFS practice in such cases may be reflected in a protocol. The protocol could set out the circumstances and the process whereby certain decisions are delegated to Advocate Deputes with no involvement of the Scottish Law Officers in the case. Preparation and publication of such a protocol might assist by making the practice more transparent, and thereby enhancing public understanding of the practice.

10.22 If it is considered desirable to enhance public understanding and perceptions of the role of the Scottish Law Officers generally, a dedicated website about the Scottish Law Officers explaining their role and responsibilities could be developed (an insight noted in Chapter 12). The Scottish Law Officers could also raise public awareness by undertaking further public engagements to explain their roles.

10.23 It may be suggested that one non-legislative approach to addressing certain issues would be for the Lord Advocate to consider putting in place an formal allocation of functions as between herself and the Solicitor General for Scotland so as to separate out between them responsibility for each of these functions. One aim for example might be to allocate to the Solicitor General responsibility for legal advice to the Scottish Government, while the Lord Advocate continues to perform the role as the head of the prosecution and the investigation of deaths systems. This may raise consequent significant issues about performance of a number of the Lord Advocate’s other functions. Also, there still would be a continuing connection between the Scottish Law Officers, the Lord Advocate being the senior Law Officer. There may be a legal constraint to explore as to whether a general allocation of this nature can be made given the extent of the power of the Lord Advocate to delegate set out in section 2 of the Law Officers Act 1944. Section 2(1)(c) provides a power to delegate “in any particular case”.

10.24 Another possible administrative measure may include a review of current Government legal and legislative drafting offices (i.e. the legal offices other than COPFS) with a view to clarifying the relationship between the Lord Advocate and these offices and supporting the Lord Advocate in her distinct roles. This may provide options as to the re-organisation of these offices to better support the Lord Advocate and highlight and entrench the distinct nature and importance of the roles that the Lord Advocate has.