Scottish Law Officers: roles and functions research report

Chapter 12 Summary

12.1 This Report provides the results of research into the roles and functions of the Scottish Law Officers carried out in accordance with terms of reference from the Scottish Government. The terms of reference are set out in Annex 1. The Report does not make recommendations for any model or approach, or options, for any future role for the Scottish Law Officers. The research is intended to inform the preparation of a future consultation by the Scottish Government on the roles and functions of the Scottish Law Officers.

12.2 The history and development of the roles and functions of the Scottish Law Officers is described in Chapter 2. The Scottish Law Officers are the Lord Advocate and the Solicitor General for Scotland. These offices are historic and significant ones.

12.3 It has been suggested^[108] that the nature of the functions of the Lord Advocate and the Solicitor General for Scotland have during their history gone through a “monarchical” phase, a “predominantly political” phase, and thereafter a “predominantly legal” phase. These three phases are described further in Chapter 2. Their roles and functions have developed and contracted through these phases.

12.4 The functions of the Scottish Law Officers became wider than their counterparts in England and Wales. Key differences between the current roles of the Scottish Law Officers and those in England and Wales and many other jurisdictions^[109] include the position of the Lord Advocate and Solicitor General for Scotland as Ministers with collective responsibility and accountability, and the Lord Advocate’s role as head of the systems of criminal prosecution and investigation of deaths.

12.5 The current roles and functions of the Lord Advocate include the head of the systems of criminal prosecution and investigation of deaths in Scotland; Ministerial responsibility for legal advice to the Scottish Government; functions in relation to the rule of law; functions in the public interest and a range of miscellaneous functions. Chapter 3 provides an overview of these roles and functions, and sets out general provisions relating to the Scottish Law Officers. Chapters 4 to 6 provide a detailed description of the various roles and functions.

12.6 The Lord Advocate has an important constitutional role in upholding the rule of law. This role is recognised in the Scottish Ministerial Code. The function is widely recognised as a role of Law Officers generally.

12.7 Chapters 7 and 8 consider the international context as regards the roles of Law Officers. The Venice Commission for Democracy Through Law issued an Opinion in 2018 on the constitutional arrangements in Malta (Chapter 7). The Venice Commission is the advisory Commission of the Council of Europe on constitutional matters. In the difficult circumstances then pertaining in Malta, the Commission recommended that in order to avoid a double role of the Attorney General in advising the Government and heading the prosecution of crime, an office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established. This would avoid the appearance of any possible conflict between these roles.

12.8 The roles and functions of Law Officers in a number of jurisdictions are considered in Chapter 8. It is noted that it is not unusual to find the allocation of a mix of different functions to a Law Officer, including Ministerial roles.

12.9 Some jurisdictions have a system whereby the Law Officer role includes the dual principal functions of the prosecution of crime, and giving legal advice to Government, as well as a range of other functions including public interest functions. Examples currently include Cyprus, Singapore and the Crown Dependencies of Jersey and Guernsey.

12.10 Some jurisdictions have moved in recent times from a model with broadly similar dual principal functions for a Law Officer, usually known as the Attorney General, to separating these roles and establishing a separate office for the prosecution of crime, often headed by an official known as the Director of Public Prosecutions (DPP). This includes Northern Ireland, Ireland, Malta and Mauritius.

12.11 The main issues for any system are the independence of the head of prosecutions; the system for accountability of the head of prosecutions; and the relationship between the head of prosecutions and the Attorney General.

12.12 Different arrangements are made in jurisdictions as regards the relationship between the Director of Public Prosecutions and the Attorney General. These include a relationship of consultation, a duty of reporting to the Attorney General, and superintendence by the Attorney General.

12.13 The current constitutional context for consideration of the roles and functions of the Scottish Law Officers is considered in Chapter 9. There have been calls for review or reform of the position of the Lord Advocate insofar as having such dual principal functions. There is Scottish Parliamentary interest in the dual principal functions of the Lord Advocate. The Justice Committee of the Scottish Parliament in their Session 5 Legacy Report noted that there are broad issues around the Lord Advocate’s dual roles which their successor committee may wish to review. The Committee on the Scottish Government Handling of Harassment Complaints, in reviewing that handling process, stated that there is no question that the process was managed with integrity and professionalism; and noted further a long-standing tension in the Lord Advocate’s dual roles, and that public perceptions are important in this regard.

12.14 The legal bases for the Lord Advocate’s roles and functions are considered in Chapter 10. With regard to any reform of the legal bases for the Lord Advocate’s roles: provision is made in an Act of the UK Parliament, the Scotland Act 1998 (the Scotland Act), in relation to the continuation of the pre-devolution position of the Lord Advocate as the head of the systems of prosecution and the investigation of deaths, and her independence in that role. The Scotland Act provides that it is not within the legislative competence of the Scottish Parliament to remove the Lord Advocate as head of these systems. Provision is also made in the Scotland Act for functions of the Lord Advocate in relation to legislative competence of Bills and devolution issues and protected subject matters.^[110]

12.15 Any potential reform of aspects of the roles and functions of the Scottish Law Officers by legislation may raise legal issues and require legal advice. There may be scope for considering possible changes in relation to certain aspects of the Lord Advocate’s roles without legislation, achieving some change by administrative decisions.

12.16 Engagement with current and former holders of the Scottish Law Officer and Crown Agent offices provides valuable insights and comments into the roles of the Scottish Law Officers. Comments made are reflected within the text of this Report, and insights and further comments offered are set out in Chapter 11. These insights include the following points:

• There are tensions inherent in the current system with the Scottish Law Officers’ dual principal roles as principal legal adviser to Scottish Ministers and as the head of the prosecution system.
• There are arrangements and conventions in place to address the tensions.
• Some other jurisdictions have systems with separation of these roles. The context in other jurisdictions may differ from that in Scotland. Other systems equally may have inherent tensions in the roles. There is no right or perfect solution to resolving these tensions.
• Whatever system is in place will rely on the integrity of the appointed Law Officers.
• Key principles as regards the Lord Advocate’s roles are independence, and t accountability at Ministerial level to the Scottish Parliament.
• The Lord Advocate has a vital constitutional role in upholding the rule of law, including within the Scottish Government itself.
• Having two Law Officers provides capacity and resilience for a very heavy workload.
• Public perception of the Lord Advocate’s independence is important.
• If it is thought that there may be an issue as to public perception of a potential conflict of interest for the Lord Advocate in decisions to prosecute in certain cases, one approach may be to consider publishing a protocol setting out the existing conventions and practices in place that are designed to avoid such conflict.
• If it is considered appropriate or necessary to raise public awareness and understanding of the Lord Advocate’s roles amongst politicians, the legal community and the public, ways to do so may include the development of a dedicated Scottish Law Officers’ website explaining their distinct roles and functions; and by the Scottish Law Officers delivering a programme of public engagement to explain their roles.