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Her Majesty's Advocate, known as the Lord Advocate (Scottish Gaelic: Morair Tagraidh, Scots: Laird Advocat), is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament. He or she is the chief public prosecutor for Scotland and all prosecutions on indictment are conducted by the Crown Office and Procurator Fiscal Service, nominally in the Lord Advocate's name.
From 1707 to 1998, the Lord Advocate was the chief legal adviser of the UK government and the Crown for Scottish legal matters, both civil and criminal, until the Scotland Act 1998 devolved most domestic affairs to the Scottish Parliament. The United Kingdom 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
Until devolution in 1999, all Lord Advocates were, by convention, members of the United Kingdom government, although the post was not normally in the Cabinet. Since devolution, the Lord Advocate has been an automatically ex officio member of the Scottish Government.
From 1999 until 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.
Until devolution, all Lord Advocates 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. Post-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.
Future careers of Lord Advocates
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.
Crown Office and Procurator Fiscal Service
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 advisor 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; transmits instructions from Crown counsel to procurators fiscal about prosecutions; and in consultation with the Clerk of Justiciary, arranges 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 Queen's and Lord Treasurer's Remembrancer
Calls for reform
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".
- Lord Advocate's Reference
- Law Officers of the Crown
- Attorney General for England and Wales
- Attorney General for Northern Ireland
- The constitutional role of the Attorney General: fifth report of session 2006-07, UK Parliament Constitutional Affairs Committee, Ev 96
- Scotland Act 1998, s 44.
- "Lord Advocate excluded from new Cabinet". The Scotsman. 23 May 2007.
- Scotland Act 1998, s 27.
- Judiciary in the Court of Session (Just over half way down the list headed "Miscellaneous Submissions").
- "Historical Background to the development of the office of Lord Advocate". Crown Office and Procurator Fiscal Service. Retrieved 2009-10-13.
- 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."
The career path of recent Scottish law officers, Scots Law Times, 14 July 2006