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This is a Report on research into the roles and functions of the Scottish Law Officers.

Chapter 1 Introduction

This is a Report on research into the roles and functions of the Scottish Law Officers.

The purpose of the Report is to outline the history and development of the roles and functions of the Scottish Law Officers; describe their current roles and functions; highlight the roles of Law Officers in a number of other jurisdictions; describe the constitutional context relevant to a review of the roles of the Scottish Law Officers; and provide a summary of insights and comments on the Scottish Law Officers’ roles from former and current holders of these offices and of the office of the Crown Agent.

The terms of reference from the Scottish Government for the research are set out in Annex 1.

The research has been carried out largely on the basis of publicly available materials and information from by the Scottish Government, as provided for in the terms of reference.

This Report is intended to inform the preparation of a future consultation by the Scottish Government on the roles and functions of the Scottish Law Officers. This Report therefore does not recommend a particular model or approach, or options, for any role or future role for the Scottish Law Officers.

In preparing the Report meetings were held with the current Scottish Law Officers and the then interim Crown Agent, and with a number of former holders of these offices, to gain their insights into the roles of the Scottish Law Officers. Meetings were also held with senior policy officials of the Scottish Government: Ken Thomson, then Director General; James Hynd, then Deputy Director; Colin Troup, Legal Secretary to the Lord Advocate; Anthony McGeehan, then Deputy Crown Agent, Operational Support in the Crown Office and Procurator Fiscal Service; and Andy Beattie, Chief Parliamentary Counsel.

The structure of this Report is as follows.

Chapter 2 outlines the history and development of the roles of the Law Officers in Scotland.

Chapter 3 provides an overview of the roles and functions of the Scottish Law Officers. Provision as to their appointment, removal and resignation is described; the position on avoidance of conflict of interest, or perception of such conflict is then described; as is the position on non-disclosure of legal advice, and on advice to previous administrations.

Chapters 4 to 6 describe in detail the current functions of the Scottish Law Officers: in relation to the systems of prosecution and investigation of deaths (Chapter 4); in upholding the rule of law and as the Ministers responsible for legal advice and the principal legal advisers to the Scottish Government (Chapter 5); and their functions in the public interest, and miscellaneous functions (Chapter 6).

Chapter 7 sets out Council of Europe provision as to standards for the judicial system and for prosecution. An Opinion of the Venice Commission for Democracy Through Law in 2018 on the role of the Attorney General in Malta is described.

Chapter 8 outlines the arrangements as regards Law Officer roles in certain other jurisdictions, for comparison.

Chapter 9 describes the constitutional context in so far as relevant to this Report. This includes recent Scottish Parliament Committee Reports commenting on the dual roles of the Lord Advocate (being the dual principal roles of the Lord Advocate, as principal legal adviser to the Government and the head of the system of prosecution), and the Report in 2023 by the House of Lords Select Committee on the Constitution which highlights the role of Law Officers in upholding the rule of law.

In Chapter 10 the legal bases for the Scottish Law Officers’ roles and functions are outlined, and any legal and constitutional frameworks that may require legal analysis to identify any constraints on potential reform of any of the roles and functions.

Chapter 11 contains a summary of various insights and comments on the roles of the Scottish Law Officers offered by former and current holders of the offices of Scottish Law Officer and Crown Agent, and by senior officials, in the course of preparing this Report.

A Summary of the Report is provided in Chapter 12.

The constitutional position of Law Officers

On the constitutional position of Law Officers generally, the following observation has been made:

“…. every constitutional order faces an exacting challenge to articulate a role for the law officers which reconciles their attachment to a particular government and its political objectives with their commitment to a broader set of values associated with the integrity of the legal and political order.” 

The author notes that there is tension inherent in the position of Law Officers; a tension with a complex anatomy.

Law Officers generally have a number of distinct and important roles to perform. It has been said that:

“treading the paths that mark these separate roles requires at times the agility and sure-footedness of a tight-rope walker, particularly when any political element impinges on the actual exercise of the Law Officer’s responsibilities.”

In Scotland, initially on devolution the Law Officers appointed had some political affiliation (as was usual before 1999). More recent appointments have been made on a “non- political” basis. The general observations above however may be borne in mind in any consideration of the roles of the Scottish Law Officers.

Further information about Law Officers may be found in the sources mentioned in Annex 2. In particular, for a detailed account of the history and functions of the Scottish Law Officers, and of each of the other Law Officers in the UK, with critical analyses, attention is drawn to the work of Dr Conor McCormick in his book, The Constitutional Legitimacy of the Law Officers in the United Kingdom; and see also The Law Officers: a constitutional and functional overview; a House of Commons Research Briefing dated 14 February 2025 by Dr Conor McCormick and Graeme Cowie..

Conor McCormick draws on the detailed account he provides as the basis for a conceptual analysis of the constitutional legitimacy of Law Officers. He argues that the most persuasive framework for analysing these offices involves concentrating on the constitutional values of independence, accountability and trust which underpin it. He emphasises that the relationship between these values should not be regarded as linear nor fixed; they appear to be trifocal and relativistic, and of a polydimensional nature. Consideration may be given to applying a framework such as this one to any evaluation of the current roles of the Scottish Law Officers, and of any alternative approaches to the roles.

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