Scottish Law Officers: roles and functions research report
Report on research into the roles and functions of the Scottish Law Officers. The research was commissioned by the Scottish Government and carried out by former Chief Executive of the Scottish Law Commission, Malcolm McMillan.
Footnotes
1 In preparing this Report, I am grateful for information and comments provided by the Scottish Government Legal Directorate (SGLD), the Legal Secretariat to the Lord Advocate (LSLA), the Crown Office and Procurator Fiscal Service and the Parliamentary Counsel Office. I am also grateful for research assistance from the Scottish Legal Information Centre, and the Constitutional & Civil Law Division of SGLD.
2 Neil Walker, The Antinomies of the Law Officers, 1999.
3 The Attorney General, Politics and the Public Interest, J. Ll. J. Edwards, Preface.
4 Law officers: a constitutional and functional overview
5 By Conor McCormick, The Constitutional Legitimacy of Law Officers in the United Kingdom, pp. 96-101.
6 In terms of the House of Commons Disqualification Act, 1975, Schedule 1, Part III.
7 Stair Memorial Encyclopaedia/Constitutional Law (Reissue)/(6) The Scottish Law Officers of the Crown/427.
8 Recorded in Conor McCormick, (n. 4). p.96.
9 Conor McCormick, (n.4), p.96.
10 See Edwards, The Attorney General, Politics and the Public Interest, p.277.
11 Edwards, (n. 14), p. 280.
12 Section 9.
13 By the Transfer of Functions (Secretary of State and Lord Advocate) Order 1972 SI 1972/2002.
14 The Scotland Act 1998 (Commencement) Order 1998 SI 1998/3178, article 2(2) and Schedule 4.
15 The Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (SI 1999/678)).
16 The Transfer of Functions (Lord Advocate and Advocate General for Scotland) Order 1999 SI 1999/679).
17 Speech by the Lord Advocate about the investigation of deaths to the Royal Faculty of Procurators in Glasgow on 20 September 2018.
18 “The “Edinburgh Review” on Scottish Law” (1858) 2 Jo. Juris. 553, 556-7.
19 HH Brown, The Procedure in Accident Inquiries and Investigations according to the Law of Scotland, 1897, p.9.
20 Lord Cullen, Review of Fatal Accident Inquiry Legislation, The Report, November 2009:
Review of Fatal Accident Inquiry Legislation: The Report
21 Rt Hon James Wolffe KC FRSE – Supplementary Written The Law Officers are discussed in the Committee report Rule of law: holding the line between anarchy and tyranny (HL Paper 211, 20 November 2025), paras. 73-78.
22 Devolution issues are defined in Schedule 6 to the Scotland Act 1998. They are legal questions affecting the boundary of the devolution settlement, for example whether an Act of the Scottish Parliament is within the legislative competence of the Parliament, or whether a Scottish Minister has acted compatibly with rights under the European Convention on Human Rights.
23 Provision is made for protected subject-matters in section 31(4) and (5) of the Scotland Act 1998 as amended: a provision relates to a protected subject-matter if it would modify, or confer power to modify any of the following matters: who is entitled to vote in Scottish Parliament elections; the voting system for Scottish Parliament elections; the number of constituencies, regions or any equivalent electoral area; the number of members to be returned for each constituency, region or equivalent electoral area. In terms of section 31A of the Act, a two-thirds majority of votes in the Scottish Parliament is required to pass a Bill relating to a protected subject-matter.
24 On the independence of the Attorney General for England and Wales in making public interest decisions in the context of the criminal law, and informing himself of all the relevant facts by consulting colleagues, an official statement was made by the former Attorney General Shawcross. The statement is set out in Conor McCormick, (n.4 ), at pp.66-67.
25 Written question and answer: s5w-22473 | Scottish Parliament Website
26 Meeting of the Parliament: 10/01/2018 | Scottish Parliament Website
27 Meeting of the Parliament: 28/02/2018 | Scottish Parliament Website
28 Lord Advocate's statement to the Scottish Parliament on Post Office Horizon IT prosecutions | COPFS
29 Lord Advocate: role and functions - gov.scot On devolution, the Lord Advocate was a full member of Cabinet; the position changed thereafter, the Lord Advocate not formally being a member of Cabinet. Then in May 2007 the then First Minister decided that the Lord Advocate will not be a member of Cabinet and will not normally attend meetings. See the discussion by Conor McCormick, (n. 4), pp. 179-183.
30 For information on the Lord Advocate’s attendance at recent Cabinet meetings, see Written question and answer: S6W-36193 | Scottish Parliament Website; and the Scottish Government response published on 3 March 2022 to an FOI request: FOI reference FOI/202200276393; Lord Advocate Scottish Cabinet meetings attendance dates: FOI release - gov.scot; .
31 See the comment from James Wolffe KC, a former Lord Advocate, in evidence to the House of Lords Constitution Committee: Corrected oral evidence: The rule of law
32 In terms of section 48(3) of the Scotland Act 1998 (which under section 48(4) is without prejudice to section 287 of the Criminal Procedure (Scotland) Act 1995 (demission of office by Lord Advocate)).
33 Scottish Ministerial Code: 2025 Edition; published in October 2025.
34 This has been upheld by the courts, see for example Her Majesty's Treasury v Information Commissioner [2010] 2 W.L.R. 931.
35 Quoted in The Law Officers of the Crown, JLJ Edwards, p. 177. Commons Chamber - Hansard - UK Parliament. Column 31.
36 Also of interest is the Campbell case, a controversy relating to perceptions of inappropriate UK Cabinet influence on a prosecutorial decision by the Attorney General for England and Wales in 1924 which resulted in the resignation of the Government. The case is described by Conor McCormick, (n. 4). at pp.184-186
37 The King's and Lord Treasurer’s Remembrancer (“KLTR”) is the Crown’s representative in Scotland who deals with ownerless property. In Scots law, the Crown can claim ownerless property. The legal term for this is "bona vacantia" and it typically includes dissolved company property, moneys remitted to the Crown, and personal estates of heirless individuals. Under Scottish law all portable antiquities of archaeological, historical or cultural significance are subject to claim by the Crown through the Treasure Trove system.
38 Public Finance and Accountability (Scotland) Act 2000 (asp 1), s.15.
39 Starrs v Ruxton (2000 JC 208); see p. 212.
40 Starrs v Ruxton, (n.41). ,p. 47.
41 See e.g. HM Advocate v Cooney [2022] HCJAC 10 at paras 17 – 21.
42 Duty to Prosecute | SpringerLink
43 Mandatory Prosecution Jurisdictions
44 The Scottish Parliament, Justice Committee, 4th Report, 2012 (Session 4), Stage 1 Report on the Police and Fire Reform (Scotland) Bill [40]
45 Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, s.2(4)(a) &(5)(b)
46 The 2016 Act (n. 47), s.2(3)
47 A guide for the police and staff on the role of the Police Investigations & Review Commissioner
48 George Watson, Bell’s Dictionary and Digest of the Law of Scotland, 7th ed., Bell & Bradfute Butterworths, 1890, 859-860
49 Speech by the Lord Advocate to the Royal Faculty of Procurators in Glasgow dated 20 September 2018.
50 HSE: Work-related deaths liaison protocol
52 Criminal Proceedings etc. (Reform)(Scotland) Bill, Policy Memorandum, para.317. The Bill was passed on 18 January 2007 and became an Act (the Criminal Proceedings etc (Reform) (Scotland) Act 2007 referred to above) on 22 February 2007.
53 HC Deb 21 January 1982, vol 16, col 424
Rape Case (Glasgow) - 21 January 1982
54 House of Lords Select Committee on the Constitution, 9th Report of Session 2022-23, The Roles of the Lord Chancellor and the Law Officers, para 31.
55 Rule of law inquiry launched by Lords Constitution Committee - Committees - UK Parliament.
56 See Corrected oral evidence: The rule of law and
Rt Hon James Wolffe KC FRSE – Supplementary Written Evidence (ROL0112)
57 Tom Bingham, The Rule of Law (London: Allen Lane), 2010.
58 Scottish Ministerial Code: 2025 Edition; published October 2025.
59 See Vetting Bills in the Scottish Parliament for Legislative Competence, McCorkindale and Hiebert, Edinburgh Law Review, September 2017, vol 21, no 3, pp 319-351.
60 See footnote 28 as regards protected subject-matters.
61 See for example Helow v Secretary of State for the Home Department [2008] UKHL 62.
62 The Abortion Reference [2022] UKSC 32.
63 Adams v Advocate General 2003 SC 171; the Abortion Reference [2022] UKSC 32; X Petitioner [2022] CSOH 15.
64 The Act repealed the Vexatious Actions (Scotland) Act 1898, section 1.
65 Council of Europe, European Commission for Democracy through Law (Venice Commission), Report on European Standards as Regards the Independence of the Judicial System: Part II – The Prosecution Service (adopted by the Venice Commission at its 85th plenary session): Report on European Standards as Regards the Independence of the Judicial System: Part II – The Prosecution Service.
66 Council of Europe, Opinion No.9 (2014) of the Consultative Council of European Prosecutors to the Committee of Ministers of the Council of Europe on European norms and principles concerning prosecutors.
68 Venice Commission :: Council of Europe (coe.int)
69 Opinion on Ten Acts and Bills Implementing Legislative Proposals Subject of Opinion CDL-AD (2020)006
70 Neil Walker, The Antinomies of the Law Officers, p. 143.
71 As regards arrangements in relation to Law Officers in Scotland, England and Wales and Northern Ireland, the following publications provide further detail: the House of Commons Briefing Paper dated 14 February 2025, The Law Officers: a Constitutional and Functional Overview, by Conor McCormick and Graeme Cowie; and The Constitutional Legitimacy of Law Officers in the United Kingdom, by Conor McCormick.
72 Reform of the role of the Attorney General was proposed in 2007 as part of the 2007 Governance of Britain consultation. In the end the Constitutional Reform and Governance Act 2010 that followed did not include any provision on the Attorney General. The House of Lords Constitution Committee undertook an inquiry into the roles of the Lord Chancellor and the Law Officers, publishing a Report in January 2023. See also C. Casey, ‘The Attorney’s Bridle: The Constitutional Convention Disciplining the Attorney General’s Discretionary Powers’, U.K. Const. L. Blog (20th October 2025) (available at Conor Casey: The Attorney’s Bridle: The Constitutional Convention Disciplining the Attorney General’s Discretionary Powers))
73 The roles of the Lord Chancellor and the Law Officers (parliament.uk)
74 A limited review by the Rt Hon Dame Elish Angiolini of the Attorney General’s legal adviser relationship with the Executive and departments was commissioned, and a report received in 2012 which has not been published. A more comprehensive review into the office of the Attorney General for Northern Ireland was commissioned by the Northern Ireland Executive in the summer of 2021.
75 House of Commons, Constitutional Affairs Committee, Constitutional Role of the Attorney General, Fifth Report of Session 2006-07, Ev 108:
76 Jeewan Mohit v The Director of Public Prosecutions (2005 PRV 31).
77 For a brief history and overview of the Australian Law Officers and a comparison of their roles with their counterparts in England and Wales, see: Gabriele Appleby, ‘Reform of the Attorney General: comparing Britain and Australia’ [P.L. 2016, Oct, 573-594]
78 Areas of responsibility – Attorney-General, accessed on 11 January 2024
79 Law Officers Act 1964, s.6, https://www.legislation.gov.au/C1964A00091/2011-12-27/text
80 CDPP - Australia’s Federal Prosecution Service
81 New Zealand - Law Officers of the Crown
82 Ibid.
83 Ibid. See also Geoffrey Palmer, ‘New Zealand office of the Attorney General’ C.L.B. 1987, 13(1), 248-252 for the perspective of a former Attorney General on the benefit of the Solicitor General being responsible for prosecution functions – independent of the Cabinet.
84 Roles of the Attorney General and the Director of Public Prosecutions
85 An Act respecting the office of the Director of Public Prosecutions
87 Council of State of France (europeanlawinstitute.eu)
88 ECCHR: German Federal Public Prosecutor
89 Der Generalbundesanwalt - The Attorney General: Legal position
91 Cause of Death and Autopsies - U.S. Embassy & Consulates in France (usembassy.gov)
92 FAQ: The French procedure in case of death of an exiled person
93 What to do after a British person dies in France - GOV.UK (www.gov.uk)
94 Medico-Legal_Death_Investigation_Systems__Poland.pdf
96 Death/Bereavement Information Sheet in Finland. Prepared by British Embassy
97 Neil Walker, (n. 70) p.163.
98 See fn 60.
99 “The Constitutional Position of the Lord Advocate”, Christine O’Neill, (Journal of the Law Society of Scotland),1 March 2000; “The Role of the Lord Advocate: Time for Radical Change or Cautious Reform” (Scottish Legal News, 4 March 2021); “Scots Lawyers Call for Role of the Lord Advocate to be Split” (Scottish Legal News, 5 March 2021); Nick McKerrell, “The Lord Advocate: A Need for Reform or Reflection?” (The Constitution Society, 1 April 2021); Scott Crichton Styles, “How the Roles of the Lord Advocate Could be Split and Why It Could Help Pursuit of Indy”, (The National, 14 June 2021); Starmer tells Swinney to abolish dual role of lord advocate | Scottish Legal News.
100 See for example the following party manifestos for the Scottish Parliament 2021 election: Scottish Labour, p104 (Scottish Labour Manifesto, 2021), Scottish Liberal Democrats, p.33
(Scottish Liberal Democrats Manifesto, 2021), Scottish National Party, p.36
(SNP Manifesto, 2021). Also Liam Kerr MSP, The Dual Role of the Lord Advocate: Tradition, Tension and a Role Under Strain, Scottish Affairs 34.4 (2025): 504–519; Badenoch vows to end dual role of lord advocate | Scottish Legal News
102
104 The roles of the Lord Chancellor and the Law Officers (parliament.uk)
105 Scottish Law Officers (Devolution) - Hansard - UK Parliament
106 Now known as Principal Crown Counsel.
107 It may be noted that a former Lord Advocate, James Wolffe KC, stated in evidence to the House of Lords Constitution Committee that one of the strengths of the system in Scotland is that the Lord Advocate can effectively clone themselves and clothe others with his or her responsibilities. Any prosecutorial decision will be made independently and in accordance with the ethics that apply to prosecutors. See 18 June 2025 - Rule of Law - Oral evidence - Committees - UK Parliament
108 By Conor McCormick, The Constitutional Legitimacy of Law Officers in the United Kingdom, pp. 96-101.
109 See Chapter 8 for further details.
110 See footnotes 27 and 28 for an explanation of devolution matters and protected subject matters.
Contact
Email: heather.reece-wells@gov.scot