Lord Advocate

Not to be confused with Advocate General for Scotland.

Scotland
His Majesty's Lord Advocate
Scottish Gaelic: Morair Tagraidh
Crest from the Royal Coat of Arms of Scotland as used by the Lord Advocate

Flag of Scotland
Incumbent
Dorothy Bain KC
since 22 June 2021
Crown Office and Procurator Fiscal Service
StyleThe Right Honourable
TypeGreat Officer of State
Law Officer of the Crown
Chief Legal Officer
Member ofScottish Cabinet
Privy Council
Cabinet Sub-Committee on Legislation
Scottish Government Legal Directorate
Reports toFirst Minister of Scotland
AppointerMonarch on the recommendation of the First Minister once approved by Parliament
Term lengthAt His Majesty's pleasure
DeputySolicitor General for Scotland
Salary£134,092 per annum (2023)[1]
WebsiteLord Advocate at the Scottish Government

His Majesty's Advocate, known as the Lord Advocate (Scottish Gaelic: Morair Tagraidh), is one of the law officers of the Crown, and is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolved powers of the Scottish Parliament. The Lord Advocate provides legal advice to the government on its responsibilities, policies, legislation and advising on the legal implications of any proposals brought forward by the government. The Lord Advocate is responsible for all legal advice which is given to the Scottish Government.[2]

The Lord Advocate serves as the ministerial head of the Crown Office and Procurator Fiscal Service, and as such, is the chief public prosecutor for Scotland with all prosecutions on indictment being conducted by the Crown Office and Procurator Fiscal Service in the Lord Advocate's name on behalf of the Monarch. The Lord Advocate serves as the head of the systems of prosecutions in Scotland and is responsible for the investigation of all sudden, suspicious, accidental and unexplained deaths which occur within Scotland.[3][4]

The officeholder is one of the Great Officers of State of Scotland. The current Lord Advocate is Dorothy Bain KC, who was nominated by First Minister Nicola Sturgeon in June 2021.[5] The Lord Advocate is appointed by the monarch on the recommendation of the incumbent First Minister of Scotland, with the agreement of the Scottish Parliament.[6]

History

The office of Advocate to the monarch is an ancient one. The first recorded Lord Advocate was Sir John Ross of Montgreenan, who is formally mentioned in 1483.[7][8][9] At that time the post-holder was generally referred to as the "King's Advocate" and not until the year 1573 was the term "Lord Advocate" first used.[10]

From 1707 to 1998, the Lord Advocate was the chief legal adviser to the British Government and the Crown on Scottish legal matters, both civil and criminal, until the Scotland Act 1998 devolved most domestic affairs to the Scottish Parliament. His Majesty's Government is now advised on Scots law by the Advocate General for Scotland.

The Lord Advocate is not head of the Faculty of Advocates; that position is held by the Dean of the Faculty of Advocates.

Parliamentary and government role

Cabinet role

Until devolution in 1999, all Lords Advocate were, by convention, members of either the House of Commons or the House of Lords to allow them to speak for the government. Those who were not already members of either house received a life peerage on appointment. Since devolution, the Lord Advocate and the Solicitor General for Scotland are permitted to attend and speak in the Scottish Parliament ex officio, even if they are not Members of the Scottish Parliament.[11] From 1999–2007, the Lord Advocate attended the weekly Scottish Cabinet meetings. However, after the 2007 election, the new First Minister Alex Salmond decided that Lord Advocate would no longer attend the Scottish Cabinet, stating he wished to "de-politicise" the post.[12]

The Lord Advocate attends meetings of the Scottish cabinet on request by government ministers, and is permitted to view all cabinet papers in advance of meetings of the cabinet. If the Scottish cabinet is discussing matters relating to the Crown Office and Procurator Fiscal service, the Lord Advocate, or the Solicitor General of Scotland, will often be in attendance at cabinet meetings as a representative of the Crown Office and Procurator Fiscal service.[13] Wider accountability of the Lord Advocate is an important aspect of the role, and whilst not an MSP, the Lord Advocate is entitled to engage in parliamentary proceedings but is not entitled to vote on legislation proposed by the parliament as they are not an elected incumbent MSP.[13] As such, the Lord Advocate can be requested by MSPs to appear before the parliament as a form of scrutiny regarding their functions. The Scottish Parliament Standing Orders permits all written questions regarding the operation of the systems of criminal prosecution and investigation of deaths to be answerable to the parliament only by the Lord Advocate or the Solicitor General of Scotland.[13]

Appointments as Senators of the College of Justice were formerly made on the nomination of the Lord Advocate. Every Lord Advocate between 1842 and 1967 was later appointed to the bench, either on demitting office or at a later date. Many lord advocates in fact nominated themselves for appointment as Lord President of the Court of Session or as Lord Justice Clerk.[14][15]

The Lord Advocate is the principal legal advisor to the Scottish Government, and is responsible for advising the government on legislative competence of Scottish legislation, general legal issues as well as having responsibility for the provision of legal advice to the Scottish Government.[13] The Lord Advocate also has the responsibility of providing legal advice to Scottish Government Directorates and the Parliamentary Counsel Office who are responsible for drafting the legislative programme of the Scottish Government.[13]

The Lord Advocate is a member of the Cabinet Sub-Committee on Legislation and has an oversight on the drafting of government bills by Parliamentary Counsel in Parliamentary Counsel Office.[13] Prior to a bill being presented to the Scottish Parliament, the proposing minister must state that it either is or is not within the legislative competence of the Scottish Parliament, with the Lord Advocate and Solicitor General of Scotland being ultimately responsible on making a final decision as to whether the proposed bill is or is not within the parliaments legislative competence.[13] The Lord Advocate may refer a Bill to the Supreme Court within the four week period after it is passed by the Parliament, for a final decision as to whether any proposed bill, or any of its provisions, are outside legislative competence of the Scottish Parliament.[13]

The selection of counsel is the responsibility for the Lord Advocate, who approves a list of junior counsel (Standing Junior Counsel) who may be instructed by SGLD in litigation involving the Scottish Government.[13] In cases where that is considered appropriate senior counsel will also be instructed.[13] The approval of the Lord Advocate is sought in relation to the appointment of senior counsel for a particular piece of litigation, and on occasion, one of the Law Officers will be present in court in order to represent the Scottish Ministers.[13]

Crown Office

The Crown Office and Procurator Fiscal Service is headed by the Lord Advocate and the Solicitor General for Scotland, and is the public prosecution service in Scotland. It also carries out functions which are broadly equivalent to the coroner in common law jurisdictions. Incorporated within the Crown Office is the Legal Secretariat to the Lord Advocate. The Crown Agent is the principal legal adviser to the Lord Advocate on prosecution matters. He or she also acts as Chief Executive for the department and as solicitor in all legal proceedings in which the Lord Advocate appears as representing his or her own department.

They issue general instructions for the guidance of Crown counsel, procurators fiscal, sheriff clerks and other public officials; transmit instructions from Crown counsel to procurators fiscal about prosecutions; and in consultation with the Clerk of Justiciary, arrange sittings of the High Court of Justiciary. At trials in the High Court in Edinburgh, they attend as instructing solicitor. They are assisted by other senior legal, managerial and administrative staff. The Crown Agent also holds the office of King's and Lord Treasurer's Remembrancer. The Lord Advocate is one of the Commissioners for the Keeping of the Regalia of Scotland.[13]

Calls for reform

In the Greshornish House Accord of 16 September 2008, Professors Hans Köchler and Robert Black said—

It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998.

The judges of Scotland's highest court came to share this view. In a submission to the commission set up to consider how the devolution settlement between Scotland and the United Kingdom could be improved, the judges recommended that the Lord Advocate should cease to be the head of the public prosecution system and should act only as the Scottish Government's chief legal adviser. They noted various ways in which the Lord Advocate's roles had caused problems for the judicial system, including the ability "to challenge... virtually any act of a prosecutor has led to a plethora of disputed issues, with consequential delays to the holding of trials and to the hearing and completion of appeals against conviction." The judges proposed three alternative solutions: stripping the Lord Advocate of responsibility for prosecutions, exempting the Lord Advocate from compliance with the European Convention on Human Rights, or changing the law on criminal appeals. While not specifically favouring any of the three, they noted that the third proposal was radical enough to "generate considerable controversy".[16]

List of lords advocate

Pre-Union

Post-Union

Post-Devolution

Lord Advocate Term Nominated by Solicitor General
Andrew Hardie 1997–2000 Donald Dewar Colin Boyd
Colin Boyd 2000–2006 Neil Davidson
Elish Angiolini
Elish Angiolini 2006–2011 Jack McConnell John Beckett
Frank Muholland
Frank Muholland 2011–2016 Alex Salmond Lesley Thomson
James Wolffe 2016–2021 Nicola Sturgeon Alison Di Rollo
Dorothy Bain 2021–present Ruth Charteris

See also

References

  1. ^ "MSP salaries". parliament.scot. The Scottish Parliament. 5 April 2023.
  2. ^ "Lord Advocate: role and functions". Gov.scot. Scottish Government. Retrieved 2 January 2024.
  3. ^ "Our role in investigating deaths". COPFS. Crown Office and Procurator Fiscal Service. Retrieved 2 January 2024.
  4. ^ "Dorothy Bain QC nominated Scotland's new Lord Advocate". Press & Journal. 16 June 2021. Retrieved 1 January 2024.
  5. ^ "Dorothy Bain QC named as Scotland's new lord advocate". BBC News. 16 June 2021. Retrieved 18 June 2021.
  6. ^ "Lord Advocate: role and functions". Scottish Government. Retrieved 2 January 2024.
  7. ^ Fifth Report of Session 2006-07: Constitutional Role of the Attorney General (PDF). House of Common Constitutional Affairs Committee. 19 July 2007. p. 145. Retrieved 31 January 2024.
  8. ^ "Lords Hansard: 4 Nov 2013: Column 93".
  9. ^ Sinclair, Gwen (2 December 2022). "Chapter 8 Part Two: The Last Stewart Kings at Dundonald Castle". Dundonald Castle and Visitor Centre. Archived from the original on 4 December 2022.
  10. ^ "Borthwick".
  11. ^ Scotland Act 1998, s 27.
  12. ^ "Lord Advocate excluded from new Cabinet". The Scotsman. 23 May 2007. Archived from the original on 18 August 2007.
  13. ^ a b c d e f g h i j k l "Lord Advocate: role and functions". www.gov.scot. 23 October 2024. Retrieved 25 February 2026.
  14. ^ "https://api.parliament.uk/historic-hansard/written-answers/1996/jul/16/supreme-court-of-scotland-appointment-of" ".parliament.uk/historic Hansard/written Answers/1996/jul/16/supreme Court of Scotland Appointment Of" ("htt)". Parliamentary Debates (Hansard). Vol. 574. House of Commons. 16 July 1996.
  15. ^ Judicial appointments and a Supreme Court (Scotland) (PDF) (Report). House of Commons Constitutional Affairs Committee. 2003.
  16. ^ Judiciary in the Court of Session Deprecated link archived 23 December 2012 at archive.today (Just over halfway down the list headed "Miscellaneous Submissions").
  17. ^ a b c d e f g h i j k l m n o p E.B. Fryde, D.E. Greenway, S. Porter and I. Roy (1986) Handbook of British Chronology, 3rd edition, Royal Historical Society, London, p.201.
  18. ^ "Historical Background to the development of the office of Lord Advocate". Crown Office and Procurator Fiscal Service. Retrieved 13 October 2009.
  19. ^ In the National Records of Scotland (GD243/23/2) is a charter dated 23 September 1508 wherein Jonet Elphinstoun is mentioned as "relict of the deceased Master Richard Lausoun of Hieriggis."
  20. ^ George W.T. Omond (1883) Lord Advocates of Scotland, v.1, p.8 suggests Richard Lawson served as jont advocates with James Henryson of Fordell from 1503 to 1507, and James Wishart served jointly with Henryson from 1507 until 1513, but Fryde et al. (1986) Handbook of British Chronology, p.201n4 asserts there is no evidence for that.
  21. ^ Omond (1883: p.12) suggests Otterburn was senior and Foulis was subordinate. Fryde et al. (1986:p.201) make no distinction and say merely that they served together.
  22. ^ Omond (1883: p.20) suggests Otterburn was senior and Lauder was deputy or substitute.
  23. ^ Omond (1883: p.21)
  24. ^ Omond (1883: p.26) characterizes Spens as senior and Crichton as junior.
  25. ^ Omond (1883: p.37). Junior Borthwick died in January 1581 and senior Crichton seems to have continued on alone until his death in June 1582.
  26. ^ Omond (1883: p.42).
  27. ^ Omond (1883: p.60).
  28. ^ Omond (1883: p.67).
  29. ^ Omond (1883: p.69).
  30. ^ Omond (1883: p.71). Hamilton succeeded Magill on 31 January 1596, and persuaded King James VI to appoint him sole Advocate. Hart of Livielands will continue to serve jointly until being promoted to Justice Depute to 1597. Thereafter Hamilton is the sole King's Advocate. The 16th century custom of two joint advocates ends now. As a general rule, from Hamilton onwards, there will be only one King's Advocate. The title of "Lord Advocate" begins to be used in place of "King's Advocate" from around this time (Omond, p.74).
  31. ^ Omond (1883: p.81, p.87)
  32. ^ a b c d Fryde et al. (1986) Handbook of British Chronology, p.202.
  33. ^ Omond (1883: p.102)
  34. ^ Omond (1883: p.104)
  35. ^ "No. 27864". The London Gazette. 15 December 1905. p. 9008.
  36. ^ "No. 12118". The Edinburgh Gazette. 19 February 1909. p. 173.
  37. ^ "No. 12613". The Edinburgh Gazette. 4 November 1913. p. 1143.
  38. ^ "No. 13026". The Edinburgh Gazette. 15 December 1916. p. 2348.
  39. ^ "No. 13583". The Edinburgh Gazette. 2 April 1920. p. 1008.
  40. ^ "No. 13794". The Edinburgh Gazette. 10 March 1922. p. 456.
  41. ^ "No. 13863". The Edinburgh Gazette. 3 November 1922. p. 1718.
  42. ^ "No. 13996". The Edinburgh Gazette. 12 February 1924. p. 225.
  43. ^ "No. 14076". The Edinburgh Gazette. 18 November 1924. p. 1439.
  44. ^ "No. 33492". The London Gazette. 7 May 1929. p. 3007.
  45. ^ "No. 14558". The Edinburgh Gazette. 21 June 1929. p. 650.
  46. ^ "No. 15005". The Edinburgh Gazette. 3 October 1933. p. 809.
  47. ^ "No. 34147". The London Gazette. 2 April 1935. p. 2231.
  48. ^ "No. 15222". The Edinburgh Gazette. 1 November 1935. p. 913.
  49. ^ "No. 15820". The Edinburgh Gazette. 13 June 1941. p. 305.
  50. ^ "No. 16257". The Edinburgh Gazette. 21 August 1945. p. 285.
  51. ^ "No. 16481". The Edinburgh Gazette. 14 October 1947. p. 427.
  52. ^ "No. 16906". The Edinburgh Gazette. 9 November 1951. p. 565.
  53. ^ "No. 17250". The Edinburgh Gazette. 11 January 1955. p. 13.
  54. ^ "No. 17812". The Edinburgh Gazette. 12 April 1960. p. 221.
  55. ^ "No. 18079". The Edinburgh Gazette. 19 October 1962. p. 637.

Sources

The career path of recent Scottish law officers, Scots Law Times, 14 July 2006

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