Scottish Law Officers: roles and functions research report

Chapter 11 Insights from Engagement

11.1 The remit for this project requires that in particular the research should include engagement with current and former holders of the Scottish Law Officer and Crown Agent offices for their insight.

11.2 Engagement for this purpose proceeded on the basis that any insights and comments offered would not be attributable to any individual. This arrangement allowed for free and frank exchanges during engagement. Meetings were held with the current Lord Advocate, the Right Hon Dorothy Bain KC (2021- present) and the current Solicitor General for Scotland, Ruth Charteris KC (2021-present); with former Lord Advocates: the Right Hon Lord Boyd of Duncansby (2000-2006, also Solicitor General for the UK from 1997 then Solicitor General for the Scottish Government in 1999), the Right Hon Lady Elish Angiolini (2006-2011, also Solicitor General from 2001-2006); the Right Hon Lord Mulholland (2011-2016, also Solicitor General from 2007 - 2011), and the Right Hon. James Wolffe KC (2016-2021); with the late Right Hon The Lord Wallace of Tankerness KC, former Deputy First Minister (1999-2005), Minister for Justice (1999-2003), and Advocate General for Scotland (2010-2015); and the then interim Crown Agent, now Crown Agent John Logue (2024-present), and former Crown Agents, Sheriff Harvie (2016-2022), and Sheriff McFadyen (2004-2010). Meetings were also held with the senior Government policy and legal officials mentioned in Chapter 1.

11.3 Comments made, and information provided, in the course of the discussions about the role of the Scottish Law Officers are reflected in the preceding Chapters addressing the history of the roles, the current functions of the Scottish Law Officers, prosecutorial independence, the constitutional context and models in other jurisdictions.

11.4 Further insights and comments shared in these engagements are summarised and set out in the paragraphs below. This summary reflects a series of individual and personal insights, and sometimes contrasting individual perceptions. Any review of the Scottish Law Officers’ roles may wish to take into account these insights and comments.

Principal roles of the Lord Advocate

11.5 Two of the principal roles of the Lord Advocate are the head of the prosecution and investigation of deaths systems and the Minister responsible for legal advice to the Scottish Government. The combination of these roles, and the other roles of the Lord Advocate, creates complexity. There can be connections or effects between these separate functions. This can raise tensions. There is a need to keep decisions within one role separate from functions under another role. How decisions are communicated is important in this context.

11.6 From one perspective, the functions of the dual principal roles, seen as a whole, all relate to the rule of law, and reinforce the independence of the role. The overall role is enriched by these dual principal functions. Performing one of these functions enhances the performance of the other.

11.7 There is a way through any tensions and difficulties arising from the dual principal roles. Any system, including models in other jurisdictions, will involve tensions and issues. The question may be whether the current system is the best approach in the Scottish context.

11.8 From another perspective, there are different ways in which to configure the Lord Advocate’s principal roles; and there is no right way of doing so.

Other jurisdictions

11.9 If consideration is being given to splitting the dual principal roles of the Lord Advocate, it is relevant to look at the model in England and Wales and in particular the relationship between the Attorney General and the Director of Public Prosecutions. The relationship is one of superintendence by the Attorney General. A written agreement on the relationship reflects that superintendence. What superintendence means in practice is a key issue. It may be that in effect these office-holders negotiate themselves what this means in practice. There may be variations from time to time in how this relationship is understood and works in practice. This may depend on the personalities of the holders of these offices and how they work together. It is noted that the office- holders are invariably able people and act with integrity and so make the system work. There may however be a risk inherent in how this model is constructed. There are different ways to configure securing the prosecution of crime, with no right answer for all contexts.

11.10 If there were to be an office of a Director of Public Prosecutions (DPP) in Scotland, and a role for a Law Officer similar to that of the Attorney General in England and Wales, a question arises as to the status of the respective offices. It is also thought that there is significant value in the DPP office not being a role for an official, but a Ministerial one, so that public accountability rests with a Minister who is directly responsible for the function.

11.11 Other systems in the Commonwealth are common law ones and so are different from the Scottish system. Jurisdictions such as the USA include election to office as a District Attorney. As regards the UK and Irish systems, on one view these are quite different from Scotland and so are not good comparisons. The Scottish model of the Lord Advocate has developed over time and has provided a stable environment for prosecutions. The Scottish prosecution system is a coherent one, with the Lord Advocate at the apex. In England and Wales there is a different context and there were concerns as to the police prosecution system before the introduction of the Crown Prosecution Service.

11.12 As regards Law Officer roles in other jurisdictions, it is noted that there are other systems similar to the Scottish model with dual principal roles for the Law Officer.

11.13 A principled approach should be taken to any review of the roles of the Lord Advocate. Independence and accountability of the Lord Advocate are key principles in any review. A review could be based on the approach proposed by Conor McCormick, namely on the constitutional values of independence, accountability and trust.

12.14 It is a key principle, a cornerstone of the justice system, that the prosecutor is independent, free from political influence or interference; and that there is a clear perception of independence.

11.15 It is noted that certain decisions on prosecution are taken personally by the Lord Advocate, for example abandoning proceedings in rape cases, and cases of prosecution of a police officer. This practice is based on previous decisions, for example where a Lord Advocate gave a commitment to Parliament in the context of debate about a rape case.

11.16 There is a robust system of checks and counterchecks within the Crown Office and Procurator Fiscal Service to preserve the independence of prosecution decisions in cases with any potential conflict of interest, such as the prosecution of a political figure. Independence is preserved by the arrangement whereby the Lord Advocate delegates to the Principal Advocate Depute^[106] the consideration and making of the decision to prosecute or not. This keeps a clear distance between the Lord Advocate and the decision. Any notion as to political influence on prosecutions is baseless.

11.17 The current system works because of the quality and integrity of the individuals appointed. It is emphasised that the integrity of the office holder is important, under whatever system or structure is in place.

Perception of independence

11.18 Public perception of the dual principal roles of the Lord Advocate is a significant issue. Public confidence in the Lord Advocate and in prosecutions needs to be maintained.

11.19 A question is raised as to whether public perception of the dual principal roles can be politicised and whether any concern as to public perception is over-stated. The structures and practices in place provide a guarantee of independence, as does the integrity of the Lord Advocate.^[107] The pressing need is to ensure that politicians and the public understand better the role of the Lord Advocate within Government. Any proposal to change the system requires to demonstrate good reason for change.

11.20 One way forward suggested is to meet the leading critics of the current system, in order to discuss the issues and deepen the understanding of the current system.

11.21 A way of addressing any issue of public perception is to seek to do more to explain the role of the Lord Advocate in order to enhance the level of awareness and understanding of the public. For example, a Scottish Law Officer website could be developed, explaining their distinct roles. The Scottish Law Officers could develop on an ambassadorial role, engaging with society and explaining their role.

Accountability

11.22 The Lord Advocate is accountable to the Scottish Parliament. This is of fundamental importance, and it is a particular advantage of the Scottish system.

11.23 There is appropriate public interest in certain general prosecution issues. There is Parliamentary interest in matters such as resourcing and budget issues, and this interest has brought benefits to the Lord Advocate and to COPFS.

11.24 If other models are being considered, it is important to keep in place a method of accountability to Parliament. On one view, accountability must be at Ministerial level.

11.25 From another perspective, attention is drawn to ways of providing for a non-Ministerial office holder to be directly accountable to the Scottish Parliament. An example is the Keeper of the Registers. The Registers of Scotland are a Scottish public body, headed by the Keeper, a non-Ministerial office-holder in the Scottish Administration. Scottish Ministers have statutory powers in relation to the Registers, but no power of direction in relation to the Keeper’s exercise of statutory duties. The Keeper answers Parliamentary Questions for matters within her responsibility, and she can give written and oral evidence to committees of the Parliament. The Register of Scotland’s budget is agreed by the Scottish Parliament as part of the Scottish consolidated budget.

Prosecution and investigation

11.26 The Lord Advocate’s prosecution function includes an investigation role, with power to direct the police. This is a significant function and has proved to be important in certain cases.

11.27 The Lord Advocate is responsible for the COPFS budget, which is a separate budget from the Government Justice budget. This arrangement is vital in supporting and protecting the prosecution service and gaining resources for the service.

Upholding the rule of law

11.28 The role of the Law Officers in safeguarding the rule of law is a crucial one. Part of the role is to police the boundaries of the law and ensure that the Government acts lawfully. This can lead to stark situations. For example, where advice is given and not taken, the Lord Advocate may resign. This constitutional role must be protected and not weakened by any change. Attention is drawn to the role of the office of Chancellor of Justice, for example in Finland and Sweden, as a model reflecting the importance given by government to protecting the rule of law.

Appointment of Law Officers

11.29 It is suggested there is a case for reviewing the process for appointing the Law Officers at some stage. One view is that a more open process for appointment, including inviting applications, could be considered. There is a clear need for the process to test the integrity of the individual, given the importance of the role.

11.30 There is the issue of whether an individual is appointed on a political basis, namely whether they are sympathetic to the political aims of the Government of the day. On one view it is considered important that an appointee is sympathetic to the aims of the Government, so as to seek to explore ways to deliver the policy aims. In any case, the system should not rule out that an appointee be a member of the same party as the Government. To do so would lose the advantage of empathy and may adversely affect the potential depth of the field of candidates.

11.31 Another view is that appointments should not be political in nature; there should be no requirement for sympathy for the aims of the Government of the day. What is required for the post is the giving of legal advice. This does not necessarily involve agreement with the policy aim. There are advantages where a Law Officer is appointed on a non-political basis. Law Officers meet politicians from all parties in the course of their duties, and the fact that the Law Officer is independent in a political sense is important and is well received in that context.

11.32 It was noted that the skill set currently required of candidates for the post of Lord Advocate is very high. The post requires the holder to be operational, involved in the practicalities of cases; to have knowledge of the criminal law and experience of criminal cases; to have an understanding of constitutional issues and civil law; and to have experience of civil litigation.

11.33 It is important to take steps to foster depth in the field of potential candidates. Recent work to develop the system of Advocate Deputes is noted.

Attendance at Cabinet

11.34 One view expressed during discussion is that it is important that the Lord Advocate attend Cabinet meetings. The Lord Advocate is a Minister with collective responsibility for Ministerial decisions. Attendance enables the Lord Advocate to understand the context in which advice may be sought.

Investigation of sudden and unexpected deaths

11.35 The work on the investigation of sudden and unexpected deaths is a crucial public role. The work establishes critical policy issues for society, which are then relayed to the Government to address; for example, on matters such as health and safety.

House of Lords Constitution Committee Report

11.36 The House of Lords Constitution Committee Report in 2023 highlighted the constitutional role of the Lord Chancellor and the Law Officers, including the role of defending the judicial system and the judiciary from attack. It is noted that the Report endorsed the Lord Advocate’s view on the appropriate threshold in giving legal advice, as set out in her reference to the Supreme Court on the Scottish Independence Referendum Bill.

Law Officers’ workload

11.37 It is emphasised that the roles of the Scottish Law Officers, as currently constructed, imposed heavy demands on the office- holders. This should be borne in mind in any review.

11.38 There is value in having two Scottish Law Officers. That arrangement provides resilience in tackling a demanding job and heavy workload. The Scottish Law Officers can split the workload and the tasks between them, as appropriate, to manage the work and where necessary to avoid any perception that carrying out one task may influence another task.

11.39 It is essential that there is a culture of shared values and respect between the Scottish Law Officers.

Lord Advocate’s retained functions: relationship with the UK Government

11.40 It is noted that under the Scotland Act 1998, the Lord Advocate has retained functions which cut across reserved and devolved areas. For example, the Lord Advocate authorises the National Crime Agency to operate in Scotland. This raises a question as to the relationship of the Lord Advocate with the UK Government as regards such roles: namely whether any structural change requires to be put in place to reflect that role.