Scottish Law Officers: roles and functions research report

Annex 1 Terms of reference

Research Paper to Inform Preparation of Formal Consultation on the Scottish Law Officers’ Roles and Functions

Purpose

• To set out the terms of reference for the preparation of research to inform the preparation of a future consultation on the roles and functions of the Law Officers in Scotland.
• The research is essential to ensure that robust information is available about the history, development and current functions of the Law Officers and potential models and examples of practice from other jurisdictions to help inform the preparation of the consultation document.
• The research will help inform the final consultation but is not intended to recommend a particular model or approach for the future role of the Law Officers in Scotland.

Content of Research

The research should include, but is not limited to:

Key functions and relationships

• Analysis of the history of the Law Officers’ roles, why and how they have developed to the current position both – pre- and post-devolution, including the decisions taken at the time of devolution.
• Detailed analysis of elements and requirements of the Law Officers’ current functions (and the source and legal basis for those requirements), including:
  • Principal legal adviser to the Scottish Government.
  • Head of the system for the prosecution of crime.
  • Head of the system for investigating sudden and unexpected deaths.
  • Representing the Scottish Government in civil proceedings.
  • Consideration of legislative competence/devolution matters.
  • Member of the Scottish Government and retained functions.
  • Representing the public interest in a range of statutory and common law civil functions; and
  • Upholding the rule of law within Government and more widely; etc.
  • Safeguards to protect the Law Officers’ independence when discharging prosecutorial functions, and
  • Law Officers’ relationship with and powers of direction for Police Service of Scotland.
  • Law Officers’ relationships with other key agencies, e.g., reporting agencies (such as Health and Safety Executive), HM Inspectorate of Prosecution, etc.
  • Law Officers’ relationships including any powers of instructions with UK Government and UK statutory agencies (Serious Fraud Office, National Crime Agency, Security Services etc.).

Other Jurisdictions & Examples of Practice

• Examples and analysis of arrangements for the role of Law Officers in other

UK, Commonwealth and international jurisdictions.

• This includes relevant examples of practice, but in particular information on international best practice with reference to the role of Law Officers, e.g. as articulated by the Venice Commission of the Council of Europe, etc.
• Examples and analysis of arrangements for the role of Heads of Public Prosecuting Authorities in other UK, Commonwealth and international jurisdictions.

Legislative and Constitutional Context

• Analysis of the constitutional and legislative competence requirements for reforming the legal basis for the Lord Advocate’s role and functions – i.e. whether changes can be made without legislation and, where legislation may be required, which changes sit within the powers of the UK Parliament or Scottish Parliament.
• Other constitutional considerations – e.g. current arrangements for the selection and appointment and removal of Law Officers; accountability to the Scottish Parliament; membership of the Privy Council, etc.

Sources and Other Relevant Reviews

• The research and analysis should draw on existing sources of information about the Law Officers’ roles and functions and examples from other jurisdictions. Many of these sources of information can be obtained from COPFS, LSLA and SGLD.
• As appropriate, the research should consider both previous and current reviews of Law Officers’ roles in Scotland and other UK administrations, for example the current on-going inquiry by the House of Lords Constitution Committee into the role of the Lord Chancellor and Law Officers: Role of the Lord Chancellor and the Law Officers - Committees - UK Parliament.
• The research should consider as appropriate the report of the Scottish Parliament Committee on the Scottish Government Handling of Harassment Complaints and the subsequent Scottish Government response: Committee Reports - Parliamentary Business: Scottish Parliament, as well as the legacy report of the Session 5 Scottish Parliament Justice Committee: Justice Committee Legacy Report.
• The research is not intended to undertake primary research, but can consider discussions with relevant contacts, as appropriate (e.g. COPFS, LSLA, SGLD, Scottish Government justice and constitutional policy).
• In particular the research should include engagement with current and former holders of the Law Officer and Crown Agent offices for their insight.
• However, the research is not intended to seek views from current Scottish Government Ministers about possible future models for the Law Officers’ roles.