Scottish Law Officers: roles and functions research report

Chapter 9 The Constitutional Context

9.1 This Chapter outlines aspects of the constitutional context relevant to any review of the roles and functions of the Scottish Law Officers.

9.2 The context includes Scottish Parliament Committee Reports. These are the Scottish Parliament Committee Report on the Scottish Government Handling of Harassment Complaints; and the Scottish Parliament Justice Committee Legacy Report for Session 5. Comments are made in the Reports about the principal roles of the Lord Advocate, in giving legal advice to the Government and as head of the prosecution service. The importance of public perception of the independence of the Lord Advocate is also noted.

9.3 The House of Lords Select Committee on the Constitution Report into the role of the Lord Chancellor and the UK Law Officers published in January 2023 is also of interest although the Report does not extend to consideration of the role of the Scottish Law Officers. The Report highlights the constitutional role of Law Officers in upholding the rule of law.

9.4 Also of interest is the inquiry into the rule of law by the House of Lords Constitution Committee, and the oral and supplementary written evidence given to the Committee by James Wolffe KC, former Lord Advocate, about the role of the Lord Advocate and how the functions of the Lord Advocate support the rule of law^[98].

9.5 There have been calls for review or reform of the position of the Lord Advocate insofar as having such dual principal functions, including by legal commentators^[99] and in Scottish political party manifestos in 2021^[100]. The Scottish Government’s Programme, A Fairer, Greener Scotland: Programme for Government 2021/22, contained a commitment to undertake such a review.

Scottish Parliament Committee report on Scottish Government Handling of Harassment Complaints

9.6 The Scottish Parliament Committee on the Scottish Government Handling of Harassment Complaints, in a “wider reflections” chapter of their Report, consider the roles of the Lord Advocate as head of the prosecution service and in providing legal advice to Ministers (referred to in the Report as her “dual role”).

9.7 The Committee raise no question as to the integrity and professionalism with which the process under consideration, the handling of harassment complaints, was managed. The Committee refer to a long-standing tension in the Lord Advocate’s dual roles and take the view that the events considered provide a good example of that tension. The Committee note that public perceptions are important in this regard and sought reassurance on the matter.

9.8 The Committee’s Report, published on 23 March 2021,^[101] states at paragraph 733 that:

“The events involved also highlighted the dual role of the Lord Advocate as legal adviser to the Scottish Government and head of the Crown Office and Procurator Fiscal Service. This was placed firmly in focus by the handing over of the decision report by the Scottish Government to the Crown Agent. As described by the Lord Advocate this involved the Lord Advocate acting as an adviser to Ministers, and as the conduit to the Crown Agent in order to ensure appropriate handling arrangements were put in place. The Committee has no question that this process was managed with integrity and professionalism, but it provides a good example of a long-standing tension in the Lord Advocate’s dual roles. The Committee notes that public perceptions are important in this regard and seeks reassurance that the existing arrangements continue to command confidence in the independent exercise of these two important roles.”

Scottish Parliament Justice Committee Legacy Report, Session 5

9.9 The Scottish Parliament Justice Committee Legacy Report for Session 5 (2016 - 2021)^[102] records that at the start of Session 5, the Committee undertook a significant inquiry into the role and purpose of COPFS. While they continued to monitor the work of the COPFS, due to time constraints, the Committee were not able to explore more recent issues including those relating to the dual role of the Lord Advocate. The Committee consider that there are broader issues that their successor committee may wish to consider as the basis for an inquiry early in Session 6.

9.10 For example, their 2017 inquiry did not look in any depth at the appropriateness of the dual role of the Lord Advocate, who is both a full member of the Scottish Government and independent head of the prosecution service. The Committee note that in their Report some questions were posed as to how the Lord Advocate maintained his independence in practice, given that he is also a Minister and is subject to the principle of collective ministerial responsibility, as well as being principal legal adviser to the Scottish Government. The Committee state that their discussion of this issue was not extensive. The Committee also note that they did not look at the appointments process for the Lord Advocate

Scottish Government response to the Committees

9.11 The Scottish Government response to the Handling of Harassment Complaints Committee Report and the Legacy Report of the Justice Committee was published on 21 June 2021^[103]. The Government noted that the Committees indicate an interest within the Parliament in exploring the dual role of the Lord Advocate.

9.12 The Government undertook to consult on the issue. The Government also noted the strengths of the current system as regards the Lord Advocate’s roles, and that given the significance for the rule of law in Scotland, any change would require very careful consideration. It may be noted in this respect that comments about the strength of the current system, including the accountability of the Lord Advocate, are mentioned in paragraphs 11.22 and 11.24 below.

House of Lords Select Committee on the Constitution

9.13 The House of Lords Select Committee on the Constitution considered the roles of the Lord Chancellor and the UK Law Officers, took oral and written evidence, and published a Report on 18 January 2023.^[104] This was the 9^th Report of Session 2022-23. The Committee did not specifically consider the role of the Scottish Law Officers. The Committee’s conclusions as to the rule of law, and the functions of the Lord Chancellor and Law Officers to defend and uphold the rule of law, are noted below.

9.14 The Committee note that it is fundamental to the constitution that the Government acts according to the rule of law. While there is no concise, enduring and conclusive definition of the concept, its fundamental tenets are well understood and set out in an exposition by Lord Bingham, as described in paragraphs 5.8 and 5.9 above. What is critical is that Ministers are mindful of the concept, understand its key principles and act in accordance with them, and consider the rule of law to have primacy over political expediency. This is especially relevant to those with distinct rule of law functions such as the Lord Chancellor and the Law Officers (paragraph 41).

9.15 As regards the rule of law, the Committee noted that the Lord Chancellor should fulfil a wider, cross- departmental, role in defending the rule of law and educating his or her colleagues on its importance (paragraph 102).

9.16 All those in Government have a duty to defend the rule of law and should be mindful of the fundamental tenets on which it rests. This applies especially to those with legal authority. In the Committee’s view, the Law Officers have a wider role in defending the rule of law when issues arise, alongside the Lord Chancellor (paragraph 134).

9.17 The Committee comment on the “respectable legal argument” as set out in guidance and elaborated by the then Attorney General, noting that this could sometimes represent a very low threshold for authorising legally uncertain action. The Committee noted an alternative framework for assessing legal risk might be to do so in terms of a “necessary degree of confidence”, as recently exemplified in the Lord Advocate’s reference to the Supreme Court on a Scottish Independence Referendum Bill (paragraph 147).

9.18 Public confidence in the Government's commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law (paragraph 148).

9.19 On the role of the Lord Chancellor, the Committee state that in the final analysis, character, intellect, and a commitment to the rule of law are the most important attributes for a Lord Chancellor to possess (paragraph 167).

9.20 As to reform of the role of the Law Officers, the Committee note that there is great value in the Law Officers being politicians, as it provides them with a strong understanding of the political context in which they operate and bolsters the authority of their advice. As Members of Parliament, the Law Officers are accountable for their decisions, which is welcome (paragraph 232).

9.21 It is nonetheless vital that Law Officers recognise that they are different from other Ministers in that key aspects of the role require independence from party politics and Government priorities. It is key to retaining public confidence in the Law Officers’ impartiality that they place their duty to the rule of law above party political considerations (paragraph 233). It is essential that those appointed to Law Officer roles continued to be legally qualified, with relevant experience. Of equal importance to formal qualifications is the character and independence of mind of the Law Officers, which cannot be easily defined in statute (paragraph 238).

9.22 Codification of the Law Officers’ duties would improve public understanding of the various aspects of the role, including which functions should be carried out independently of Government (paragraph 247).

9.23 The Committee state that they do not have a strong view as to whether the Attorney General should be a member of Cabinet. What is important is that the office holder prioritises adherence to the rule of law over Government priorities and is willing and able to operate independently of Government where required (paragraph 257).