Scottish Law Officers: roles and functions research report

Chapter 3 Current Roles and Functions of the Scottish Law Officers: Overview and general provisions

3.1 This Chapter provides an overview of the roles and functions of the Scottish Law Officers, including their role as senior Ministers in the Scottish Government.

3.2 A description of the functions of the office of Lord Advocate has been provided to the House of Lords Constitution Committee for their inquiry into the rule of law, by former Lord Advocate James Wolffe KC.^[21]

3.3 Provision as to the appointment, removal and resignation of the Lord Advocate and Solicitor General for Scotland is described, as is the position on avoidance of perception of conflicts of interest, non-disclosure of legal advice, and advice to previous administrations. Chapters 5 to 7 then address their main functions in more detail. Chapter 5 describes the function of head of the systems of prosecution and investigation of deaths in Scotland. Chapter 6 sets out their functions in relation to the rule of law and Ministerial responsibility for legal advice to the Scottish Government. Chapter 7 describes the functions of the Lord Advocate in the public interest, and certain miscellaneous functions conferred on her.

Overview

3.4 In summary, the Lord Advocate has the following main roles and functions:

• As a Minister, collective responsibility and accountability for the decisions of the Scottish Government (the Solicitor General for Scotland also has this role).
• Head of the systems of criminal prosecution and investigation of deaths.
• The Minister with responsibility for all legal advice to the Scottish Government.
• A statutory role under the Scotland Act 1998 as amended in relation to the legislative competence of Bills, devolution issues^[22] and protected subject-matters.^[23]
• A constitutional function to uphold the rule of law.
• Representing the Scottish Government in civil proceedings.
• Functions under the Crown Suits (Scotland) Act 1857, of bringing and defending actions on behalf of His Majesty or the interests of the Crown including the Scottish Administration.
• Representing the public interest in a range of statutory and common law civil functions; including as a Commissioner for the Keeping of the Regalia of Scotland.
• Ministerial portfolio responsibility for the non-conviction based civil recovery scheme under the Proceeds of Crime Act 2002, and for functions of Ministers in relation to small public trusts.

3.5 The Lord Advocate and the Solicitor General for Scotland are senior Ministers in the Scottish Government. The Scottish Government consists of the First Minister, other Scottish Ministers appointed by the First Minister under section 47 of the Scotland Act 1998, the Lord Advocate and the Solicitor General for Scotland; in terms of section 44(1) of the Scotland Act 1998.

3.6 The Lord Advocate and Solicitor General are collectively responsible along with the other Ministers for the actions of the Government and are able to exercise any function conferred on the Scottish Ministers. This Ministerial role distinguishes the Scottish Law Officers from Law Officers in some other jurisdictions. Collective responsibility means that all decisions reached by the Scottish Ministers, individually or collectively, are binding on all members of the Government. (An exception to this for the Lord Advocate’s functions known as retained functions is mentioned in the next paragraph). Scottish Ministers’ functions do not require to be exercised jointly by all the Scottish Ministers however. Any member of the Government can exercise any of the functions of the Scottish Ministers; and any act or omission of any member of the Government is legally the act or omission of each of them; in terms of section 52(3) and (4) of the Scotland Act 1998.

3.7 Certain functions of the Lord Advocate are known as retained functions. They are functions conferred on the Lord Advocate, in the Scotland Act or in other legislation or rules of law, as a Law Officer. As such they cannot be exercised by any other Scottish Minister.^[24] The exercise of those functions is the responsibility of the Lord Advocate alone, on the basis of her independent professional judgement, and for which she is accountable. The retained functions include being the head of the systems of criminal prosecution and the investigation of deaths, and the function of giving of legal advice to Scottish Ministers.

3.8 There are statutory safeguards in the Scotland Act to protect the independence of the Scottish Law Officers in relation to their prosecutorial functions. That independence in relation to their prosecutorial functions is expressly re-affirmed and continued in section 48(5) of the Scotland Act 1998. As noted, the powers of Ministers exclude the retained functions of the Lord Advocate. Collective Ministerial responsibility does not apply to the exercise of retained functions.

3.9 It is outside the legislative competence of the Scottish Parliament to remove the Lord Advocate from her position as head of the systems of criminal prosecution and investigation of deaths (the Scotland Act 1998, section 29(2)(e)).

3.10 The Solicitor General may discharge any of the Lord Advocate's functions where the office of Lord Advocate is vacant, the Lord Advocate is unable to act owing to absence or illness, or the Lord Advocate authorises the Solicitor General to act in any particular case (the Law Officers Act 1944, section 2).

3.11 The Law Officers are accountable to the Scottish Parliament and can answer written and oral questions from MSPs. This accountability is important, reflecting the unique nature of their constitutional role. It is a fundamental part of the constitutional legitimacy of the Law Officers. The Lord Advocate or Solicitor General, if not an MSP, is entitled to participate in the proceedings of the Scottish Parliament, although not vote. The Lord Advocate may appear before committees of the Parliament, and answer questions about the exercise of her functions, although she is not required to answer questions or produce documents relating to the operation of the system of criminal prosecution in any particular case where it is considered that it might prejudice criminal proceedings or would otherwise be contrary to the public interest; in terms of section 27(3) of the Scotland Act 1998.

3.12 The Lord Advocate regularly provides answers to Parliamentary Questions and makes statements to the Scottish Parliament on significant constitutional and prosecution matters. An example of a Written Question and Answer on 24 April 2019 relates to the system of recording and tracking physical evidence.^[25] Examples of oral submissions during Portfolio Question Time of the Justice Ministers and Law Officers on 10 January 2018 concern COPFS working practices in dealing with sexual offences, and fatal accident inquiries including the Sheku Bayoh inquiry.^[26] Examples of key statements to the Parliament include: on 28 February 2018 on the European Union (Legal Continuity) (Scotland) Bill;^[27] the statement on 9 February 2021 on malicious prosecutions; the statement by the Lord Advocate to the Scottish Parliament on Post Office Horizon IT prosecutions, on 16 January 2024.^[28]

3.13 The Lord Advocate attends Cabinet meetings regularly, when required.^[29] Recent statistics on attendance are provided in the Written Answer to S6W-36193. She is not a member of Cabinet but sees all Cabinet papers. Attendance at and membership of the Cabinet is a matter for the First Minister. The Lord Advocate attends with the agreement of the First Minister when required in order to provide legal advice or to represent her Ministerial interests.^[30] The role of the Lord Advocate in Cabinet is regarded as a safeguard for the lawfulness of what Government does. ^[31]The Lord Advocate is a member of the Cabinet Sub-Committee on Legislation. She attends Ministerial Bill Management meetings.

Appointment and holding of office

3.14 The Lord Advocate and the Solicitor General for Scotland are appointed by the Sovereign, following the recommendation of the First Minister, with the agreement of the Scottish Parliament; in terms of section 48(1) of the Scotland Act 1998. On behalf of the Sovereign, the Lord President of the Court of Session carries out a swearing-in ceremony in Parliament House for each of the posts.

3.15 As regards removal from office, the First Minister may recommend to His Majesty the removal of the Lord Advocate and Solicitor General for Scotland, with the agreement of the Parliament, under section 48(1) of the Scotland Act 1998. This contrasts with the position of other Ministers, who do not have similar protection as regards removal from office. This provision safeguards the independence of the Law Officers. No Lord Advocate or Solicitor General for Scotland has been removed under section 48(1).

3.16 Since devolution, none of the holders of the office of Lord Advocate or Solicitor General has sat as an MSP, although they may do so.

3.17 Like all Scottish Government Ministers, the Scottish Law Officers cannot at the same time hold Ministerial office in the UK Government, under section 44(3) and (4) of the Scotland Act 1998.

Resignation

3.18 The Lord Advocate or Solicitor General for Scotland may resign at any time, and they must do so if the Scottish Parliament resolves that it has lost confidence in the Scottish Government. Statutory provisions ensure the continuity of prosecutions, and giving legal advice to the Scottish Government, in that despite resignation following such a resolution, the Lord Advocate is deemed to continue to hold office until a new Lord Advocate is appointed, for the purposes of exercising their retained functions.^[32] No Lord Advocate or Solicitor General for Scotland has resigned due to a resolution by the Scottish Parliament that it has lost confidence in the Scottish Government.

Avoidance of perception of conflicts of interest

3.19 The Lord Advocate is one of the Scottish Ministers. The Lord Advocate’s separate responsibilities for legal advice to other Ministers on the one hand, and as head of the systems of prosecution and investigation of death on the other, may give rise to the perception of a conflict of interest, either separately or in conjunction.

3.20 In the criminal context this would most obviously arise where criminal proceedings may be in contemplation against a family member or friend of the Lord Advocate, or against a Ministerial colleague or a political ally or opponent of the Government.

3.21 A perception of, or an actual, conflict may also arise where, prior to appointment, the Lord Advocate has acted for a party in connection with a dispute or action against either the Scottish Ministers or the then Lord Advocate as head of the systems of prosecution and investigation of deaths.

3.22 A perception of conflict may also arise, however, in the context of a case where a decision whether or not to prosecute may be perceived to have a substantial impact on the Scottish Government, of which she is a member, or where the Scottish Government itself (or COPFS) is or may be prosecuted.

3.23 In cases where there is such a potential political or other dimension, the Lord Advocate is expected to proceed on the basis of her long-established independent function as the head of the systems of prosecution and investigation of deaths. The Lord Advocate’s independence in this regard is guaranteed by the Scotland Act 1998, in section 48(5).

3.24 However, as a matter of long-standing convention and practice, such decisions are invariably taken by an Advocate Depute. Where the perception of conflict is personal to the Lord Advocate, the Solicitor General for Scotland, as Crown Counsel, will consider such cases. Where the perception of conflict applies to both the Lord Advocate and the Solicitor General, other Crown Counsel will consider such cases. In such cases, the Lord Advocate delegates to Principal Crown Counsel the appointment of counsel responsible for all prosecutorial decision-making in relation to the matter, and is not herself involved.

3.25 In such decisions, it would be made clear, and made clear publicly if so required, that the Lord Advocate (and Solicitor General if relevant) has or has had no dealings with the case in any way. The Lord Advocate or Solicitor General would not have access to the relevant papers nor be involved in any critical decisions at any point. The Lord Advocate would be entitled to receive such information as would be proper to give to her, consistent with the discharge of her public duties and to be afforded the same level of personal consideration as would be given to any other private individual in such circumstances. COPFS operates these arrangements.

Non-disclosure of legal advice

3.26 The Scottish Ministerial Code sets out the principles governing disclosure of the existence, source or content of legal advice. This is in paragraphs 6.36 to 6.39 of the Code.^[33] The basic position is that Ministers may acknowledge publicly that they have received legal advice, but neither the content nor the source of legal advice should be publicly disclosed.

3.27 All legal advice is confidential. In addition, there is a longstanding convention that the Government does not disclose that the Law Officers have, or have not, advised or been asked to advise on any matter.^[34]

3.28 The convention on non-disclosure exists to ensure that the Government is able to take the advice of its Law Officers as and when it needs to do so without coming under pressure to refer matters to the Law Officers when that is not necessary. The Government should also not be required to identify those matters which have been considered sufficiently important, sensitive or uncertain to require Law Officer involvement. The convention also encourages Government responsibility for its collective decisions, rather than pointing to legal advice. There is an exception to the convention for a statement by a Minister under section 31(1) of the Scotland Act 1998 when introducing a Government Bill; the statement is cleared with the Law Officers, as described in paragraph 6.16 below.

3.29 There is a process for obtaining Law Officer consent to disclosure.

Advice to previous administration

3.30 The Scottish Ministerial Code states in paragraph 6.35 that by convention the written opinions of the Law Officers (unlike other Ministerial papers) are generally made available to succeeding administrations.