Scottish Law Officers: roles and functions research report

Chapter 5 The Rule of Law and Ministerial responsibility for legal advice to the Scottish Government

5.1 The Scottish Law Officers have a constitutional function to uphold the rule of law. They have Ministerial responsibility for the provision of legal advice to the Scottish Government. They are the principal legal advisers to the Scottish Government. This Chapter outlines the context in which these functions operate and describes the functions in more detail.

5.2 The Government needs high quality legal advice for two important reasons. The first is that the Government is committed to acting lawfully at all times. This is an essential component of the rule of law. The second is that a policy which is not legally sound will not work.

5.3 The Scottish Law Officers look to officials in the Scottish Government Legal Directorate (SGLD), and also the Parliamentary Counsel Office, to ensure that Ministers and policy officials have the best possible legal advice to assist them in delivering their programmes. The Law Officers are not in a position to, and do not, advise on every legal issue which may arise. The Law Officers rely on the professional judgement of the legal advisers in SGLD to provide high quality legal advice to the Scottish Government, and to identify when matters require to be brought to the attention of the Law Officers and recommend when the Law Officers themselves should be involved.

5.4 There is regular communication between SGLD and the Scottish Law Officers to support the Lord Advocate when she regularly attends Cabinet, and for her membership of the Cabinet Sub-Committee on Legislation; and for her frequent meetings and discussions with Ministerial colleagues formally and informally.

The rule of law

5.5 The Law Officers’ constitutional role in upholding the rule of law is a fundamental one.

5.6 The House of Lords Select Committee on the Constitution stated in a Report that: “The rule of law is a bedrock of constitutional democracy. It is essential to maintain good and stable governance and to protect the citizen from an overmighty state. Indeed, the rule of law should be a central feature of Cabinet government”.^[54]

5.7 There is no statutory definition of the rule of law, and no agreed definition of the concept. It may be noted that the House of Lords Constitution Committee is undertaking an inquiry into the rule of law, seeking to understand the rule of law as a constitutional principle and practical matter, and what the state of the rule of law is in the UK.^[55]

The Rt Hon James Wolffe KC, a former Lord Advocate, provided oral and supplementary written evidence to the Committee, including evidence as to the functions of the office of Lord Advocate and the way these functions support the rule of law.^[56]

5.8 The work of Lord Bingham on defining the rule of law is often referred to. Lord Bingham sought to define the concept of the rule of law in a lecture in 2006, while acknowledging that “the meaning of the concept has to some extent evolved over time and is no doubt likely to continue to do so”. His formulation was that: “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”

5.9 Lord Bingham expanded on this definition with eight principles which he discussed in more depth in his subsequent book, The Rule of Law.^[57] Lord Bingham’s eight principles are:

1. The accessibility of the law: the law must be accessible and so far as possible intelligible, clear and predictable.

2. Law not discretion: questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

3. Equality before the law: the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

4. The exercise of power: ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

5. Human rights: the law must afford adequate protection of fundamental human rights.

6. Dispute resolution: means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

7. A fair trial: adjudicative procedures provided by the state should be fair.

8. The rule of law in the international legal order: the rule of law requires compliance by the state with its obligations in international law as in national law.

The Scottish Ministerial Code

5.10 Ministers have an overarching duty to comply with the law, including international law such as treaty obligations. This is recognised in the Scottish Ministerial Code 2025 Edition^[58] (the SMC). Under the SMC it is part of the role of the Scottish Law Officers to ensure that the Government acts lawfully at all times. The Scottish Law Officers do so by having overall supervision of, and requiring a high standard in, the provision of legal advice to the Government; and themselves being the authoritative source of definitive legal advice where necessary.

5.11 The SMC at paragraph 1.7 states: “The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law, including international law and treaty obligations, and to uphold the administration of justice and to protect the integrity of public life.”

5.12 Given that the Scottish Law Officers are members of the Scottish Government and collectively responsible for its actions, the legal position upon which the Scottish Government proceeds must be one which the Law Officers would be content to endorse. The presence of the Scottish Law Officers as Ministers in Government is a visible guarantee of the Government's commitment to the rule of law. Ultimately, if Ministers were to disregard the advice of the Law Officers, a possible consequence is that the Law Officers may feel obliged to consider resignation.

5.13 The SMC, at paragraph 6.28 states.: “Paragraph 1.7 of this Code acknowledges the overarching duty on Ministers to comply with the law. It is part of the role of the Law Officers (the Lord Advocate and Solicitor General for Scotland) to ensure that the Government acts lawfully at all times. Ministers and officials should therefore ensure that their decisions are informed by appropriate analysis of the legal considerations and that the legal implications of any course of action are considered at the earliest opportunity. All briefing to Ministers with legal implications should be informed by appropriate advice on the legal considerations.”

5.14 The SMC at paragraph 6.30 sets out the general and longstanding principle that the Law Officers must be consulted in good time before the Government is committed to significant decisions involving legal considerations. The SMC at paragraph 6.31 gives the following examples of the kind of situation where the advice of the Law Officers should be sought: (a) the legal consequences of action by the Government might have important repercussions; (b) a legal adviser in the Government has doubts about the legality or constitutional propriety of proposed legislation or executive action; (c) Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations; or (d) there is a particular legal difficulty that may raise sensitive policy issues.

5.15 The Lord Advocate regularly attends Cabinet, though not as a member, where legal matters, and policy matters which require to be informed by legal considerations, may be discussed. Ministers may raise legal questions with the Law Officers, at Cabinet or otherwise. The Law Officers require to be sighted on legal issues which Ministerial colleagues may raise with them in order to provide the most appropriate and helpful response to Ministerial colleagues.

5.16 Paragraph 6.32 of the SMC notes that the provision of advice by the Law Officers may be through a formal written opinion or otherwise; and that the process for seeking a written opinion of the Law Officers will normally be by way of a reference from the Scottish Government Legal Directorate (SGLD), at the request of Ministers, SGLD or the Law Officers themselves.

Legislation, devolution issues and protected subject-matters

5.17 The Lord Advocate has functions in relation to the Scottish Government’s legislative process and in relation to legislation. These are generally mirrored in the other devolution settlements. As regards the legislative competence of Bills, under the Scotland Act 1998 the Lord Advocate has two formal roles in the Bill process in addition to her legal advisory role, her membership of the Cabinet Sub-Committee on Legislation and her attendance at Ministerial Bill Management Meetings. These formal roles are about assessing the legislative competence of a Bill at either end of the parliamentary process - before introduction and after Stage 3. The assessment after Stage 3 is required to determine whether or not to exercise the Lord Advocate’s statutory function under section 33 of the Scotland Act 1998 to refer a Bill to the Supreme Court. This is a retained function, conferred on the Lord Advocate alone, and is not subject to the usual rule of collective responsibility in terms of section 52 of the Scotland Act 1998.

5.18 Before introduction, a Government Bill is accompanied at introduction by a statement by the Minister in charge that the provisions of the Bill would be within the legislative competence of the Parliament, in terms of section 31(1) of the Scotland Act 1998. That statement is cleared with the Law Officers, and the fact that this is publicly acknowledged forms an exception to the convention on non-disclosure of the role of the Law Officers in providing legal advice: see the SMC, paragraphs 6.39 and 10.5.

5.19 To enable the Law Officers to give this advice to the Minister in charge of the Bill, the draft Bill and accompanying documents are sent to the Law Officers before introduction.^[59]

5.20 After being passed by the Parliament there is a period of four weeks during which the Lord Advocate, as well as the Advocate General for Scotland and the Attorney General, may refer the Bill to the Supreme Court for a decision on whether the Bill or any provision of it would be within the legislative competence of the Parliament; in terms of section 33 of the Scotland Act 1998. Until the four-week period has elapsed, or the relevant Law Officers provide earlier confirmation that they do not intend to refer the Bill, the Presiding Officer is unable to submit the Bill for Royal Assent.

5.21 For non-Government Bills, the Lord Advocate does not have a formal role prior to introduction of the Bill. Following the passage of a non-Government Bill after stage 3, section 33 of the Scotland Act 1998 applies in the usual way so the Bill or a provision of it can be referred to the Supreme Court.

5.22 The Scotland Act 2016 expanded the competence of the Scottish Parliament and the Scottish Ministers in relation to Scottish Parliament elections, providing for a super-majority procedure to be applied to certain proposed electoral legislation. As regards any Bill which triggers the super-majority procedure (requiring a vote of two-thirds of MSPs), the Lord Advocate has an important role. Under section 32A of the Scotland Act 1998 as amended, the Lord Advocate, along with the UK Law Officers, has the power to refer to the Supreme Court the question of whether a provision of the Bill relates to a protected subject-matter.^[60]

5.23 Other ways in which the Law Officers may uphold the rule of law relate to legislation with retrospective effect, and early commencement of legislation. As regards legislation with potentially retrospective effect, this is because retrospection can undermine the rule of law and cause unfairness by affecting those who would not have proceeded with the past transaction, action or event if they had known the applicable law would be altered in future. A retrospective provision requires to be compliant with Article 7 of the European Convention on Human Rights and therefore within the competence of the Scottish Parliament. Retrospective legislation may also, depending on the context, be incompatible with other articles of the Convention, such as Article 1 of the First Protocol. There is a general public interest in the law not being changed retrospectively. Accordingly any such legislation will be carefully considered by the Government.

5.24 As regards early commencement of a Bill, there is a convention that the substantive sections of the Bill will not normally without good reason be commenced until at least two months after Royal Assent. The purpose of this convention is to ensure that those affected by the Bill have a reasonable opportunity to acquaint themselves with its final format, to prepare for its coming into force. Departure from it requires a decision of the Cabinet Sub-Committee on Legislation, of which the Lord Advocate is a member.

5.25 Like the Law Officers of the other devolved administrations, the Lord Advocate has particular statutory functions in relation to devolution issues (in effect, issues about the legislative competence of the Scottish Parliament as mentioned above, or the devolved competence of Scottish Ministers: see paragraph 1 of Schedule 6 to the Scotland Act 1998).

Representing the Scottish Government in civil proceedings

5.26 This is the function of the Lord Advocate of bringing and defending actions on behalf of His Majesty or in the interests of the Crown, including the Scottish Administration (under the Crown Suits (Scotland) Act 1857, as amended by the Scotland Act 1998).

5.27 The Litigation Division of the Scottish Government Legal Directorate is responsible for Scottish Government litigation.

5.28 The Lord Advocate has oversight of the process for applications for and the selection of standing junior counsel.

5.29 The Lord Advocate approves the appointment of senior counsel in any case.

The Lord Advocate and the Parliamentary Counsel Office

5.30 Parliamentary Counsel are Government lawyers. The main role of the Parliamentary Counsel Office (PCO) is to provide legislative drafting services to the Government. In doing so, Counsel also provide related legal advice and advice on parliamentary procedure and process in conjunction with SGLD and the Cabinet, Parliament and Governance Secretariat.

5.31 PCO, as civil servants and advisers serve the Government collectively. The Law Officers have Ministerial responsibility for PCO’s legal advice and for PCO’s functions as Government lawyers generally. The Lord Advocate is also sometimes colloquially referred to as having a role as “guardian of the devolved statute book”. PCO support this role with services and advice designed to ensure that the Scottish statute book contains the high quality, robust, cohesive, principled and accessible legislation that is needed to maintain a civilised, well-governed society.

5.32 That said, in addition to supporting the Law Officers, PCO provide support to Ministers in relation to their Bills and to Ministers collectively in relation to the delivery of the legislative programme (with Ministerial responsibility for the latter lying with the Minister for Parliamentary Business and up, through the Cabinet Sub-Committee on Legislation of which the Lord Advocate is a member, to the First Minister and Cabinet).

5.33 Parliamentary counsel perform a similar function for Governments across the world and particularly in Commonwealth jurisdictions. While there are numerous examples of how legislative drafting offices are organised, it is understood that this is most commonly done by positioning the office at the heart of Government (e.g. in Cabinet Office, or the office of the First Minister) or by way of a separate, standalone office (e.g. an Agency, or non-departmental public body). Both reflect the central role which legislative drafting offices provide across Government. Where the drafting office is located within a Law Officer’s Department this tends to be where the Law Officer and accordingly that Department is not part of Government (e.g. Ireland, Singapore).