The Roles and Functions of Scotland’s Law Officers: First Minister's Statement

The office of Lord Advocate is one of the oldest and most important institutions in Scotland's public life.

The Lord Advocate is a Government Minister whose principal responsibilities include being both the independent head of the systems of criminal prosecution and the investigation of deaths, and the principal legal adviser to the Scottish Government.

Together with the Solicitor General, the Lord Advocate plays a vital role in upholding the rule of law, in the administration of justice, and protecting the public interest.

For generations, holders of these offices have discharged those responsibilities with integrity, professionalism and independence. Their work in fulfilling the expectations of the office has been fundamental to the delivery of justice and the protection of rights at all times.

The current Lord Advocate and Solicitor General continue that tradition of outstanding public service. The reforms they have put in place are designed to provide greater transparency about decision-making and to be as open as possible about the sensitive judgements that have to be made while protecting the independence of their decision-making.

Over the centuries, the roles of the Law Officers have not remained static.  They have changed alongside Scotland’s society, institutions and constitutional framework to meet the needs of the people that they serve.

The current system has ensured that Government policy is informed by expert legal advice and guided by the rule of law, while the Lord Advocate remains directly accountable to Parliament for the exercise of her prosecutorial functions.  

However, no system, however long standing, should be beyond examination. It is right that we consider whether the current arrangements continue to serve modern Scotland as effectively as they can.

In 2022, the Scottish Government commissioned Malcolm McMillan to carry out detailed research into the history and functions of the Law Officers. His report published earlier this year gave us an important foundation and shared understanding of the roles in question.

However, that exercise was not intended to answer the question of what Scotland should do in the future. And it did not address the detailed questions that would have to be considered to ensure public expectations on the independence of decision-making could be assured if the current arrangements were subject to change.

In June, I confirmed to this Chamber that I would continue to engage on this important matter.

As I emphasised then, and continue to emphasise now, it is vitally important that we approach any reform of the Law Officers’ roles in Scotland in an open and thoughtful way, to ensure that the significant constitutional, legal and operational issues are thoroughly explored and to ensure that in every respect there is a clear understanding of the implications of any changes.

Only then can Parliament have a fully informed discussion about whether any changes should be made to those roles.

With that in mind, I can announce that the Scottish Government will establish an independent review on the future functions and responsibilities of the Scottish Law Officers.

The review will be independently chaired by Lord Boyd of Duncansby.

Having served as both Lord Advocate and Solicitor General, and later as a Senator of the College of Justice, Lord Boyd brings extensive experience of Scotland’s legal and constitutional framework to this review.

It is essential that the review hears from a wide range of individuals and organisations, such as the judiciary, professional bodies, members of this Parliament and others with an interest in the future role of the Law Officers.

Lord Boyd will appoint a reference group to support his work, ensuring that the review benefits from a broad range of perspectives and expertise.

I am confident that Lord Boyd as chair will engage widely and openly to ensure that all relevant views are heard.

The review will examine the advantages and disadvantages of making changes to the current arrangements. It will consider the strengths and weaknesses of alternative models, engage with the legal, constitutional and practical implications of reform, and make recommendations to Scottish Ministers.

Crucially, the review will approach these issues with an open mind. It will follow the evidence where it leads - whether that is to reforms or to maintaining the status quo.

In accepting my appointment, Lord Boyd has said, and I quote:

“I am very pleased to have been asked by the First Minister to conduct this review. The issues it will consider are of fundamental importance to the administration of justice in Scotland. 

“Any recommendations must safeguard the independence and integrity of the prosecution system, sustain public confidence, strengthen accountability, and ensure that Ministers continue to receive high-quality, professional legal advice. I approach the task with an open mind and will consult widely before making my recommendations to Ministers in due course.”

So those are the words of Lord Boyd.

The Scottish Government will provide administrative support, but it will work independently, and its conclusions will be entirely its own. The review will begin work in the new year, and the current intention of the chair is for it to publish its final report in the latter part of 2027.

Once the review has reported, we will consider its recommendations carefully. If changes are recommended, those proposals may then form the basis for a public consultation, and Parliament will have the opportunity to scrutinise any of our subsequent decisions on these reforms.

It has been widely established – including by United Kingdom Government Ministers – that consideration of whether any changes should be made to the roles of the Scottish Law Officers is properly a matter for this Parliament to lead on.

By establishing this independent review, we are ensuring Scotland takes a careful, evidence-based and mature approach to an important constitutional question.

Presiding Officer, in closing I would like to put on record my gratitude to the Lord Advocate and the Solicitor General for their support, leadership and constructive engagement as we have developed our plans for a review.

They have welcomed the opportunity to improve understanding of their roles, while ensuring that any proposals for change are informed by a full and careful assessment of the options and their consequences.

I also welcomed the constructive tone in this Chamber on the case for considering reform when the current Law Officers were nominated in June.

I hope that parties across the Chamber will engage with the work of the review and its recommendations in a similar spirit.

It is right that we debate the future of the Law Officers’ roles. These long-standing roles have been crucial to establishing, and sustaining, a legal framework in Scotland that commands public confidence, that provides dependable legal advice for Government and enables justice for all to be delivered. It is absolutely critical that in any process of reform those critical attributes are maintained.

In commissioning this review, the Government wants to ensure the debate in Scotland on this important issue is guided by the highest quality of evidence, analysis and consideration. I know that Lord Boyd will provide that approach and perspective.

I encourage all interested parties throughout our country who wish to contribute to this process to approach this review in that spirit.