Evidence submitted by The Lord Advocate,
Scotland
Thank you for your letter of 21 March inviting
me to comment on your investigation into the role of the Attorney
General.
While there are some similarities between the
responsibilities of the Attorney General in England and Wales
and the Lord Advocate in Scotland, as will be seen from the attached
paper setting out the role of the Lord Advocate (a copy attached
at Annex A), the two posts have developed separately and independently
and it would not, to my mind, be sensible to seek to draw too
close a comparison between them. As a Scots lawyer, I am trained
in what is essentially a very distinct system of law. The prosecution
of all crime in Scotland is the responsibility of one department
only and as Lord Advocate I also have responsibility for the investigation
of all sudden, suspicious or unexplained deaths. It would therefore
be inappropriate for me to comment in any detail about the position
of Attorney General given the significant differences.
It may nevertheless be of interest to the Committee
to know that I have recently delivered a public lecture (a copy
attached at Annex B) in which I addressed various aspects of my
role. Significant elements of that role are of course now codified
in the Scotland Act 1998. As will be seen from my speech, it is
my view that in Scotland there continues to be considerable merit
in having a Ministerial head of the system of prosecution who
is immediately accountable to the Parliament—subject to
the safeguards as to my independence which are provided by the
1998 Act. In the Scottish context there is, I believe, great value
in having the principal legal adviser to the Scottish Executive
closely involved in the processes of government at Cabinet level.
While there are no doubt other ways in which these roles could
be performed, the present arrangements work well in the context
of the devolution settlement within which they are located.
Rt Hon Elish Angiolini QC
April 2007
Annex A
THE ROLE AND FUNCTIONS OF THE LORD ADVOCATE
INTRODUCTION
1. The Lord Advocate has always been the
senior of the two Scottish Law Officers and has four roles:
— head of the systems of prosecution
and investigation of deaths;
— principal legal adviser to the Scottish
Executive;
— representing the Scottish Executive
in civil proceedings; and
— representing the public interest
in a range of statutory and common law civil functions.
In relation to criminal prosecutions and investigation
of deaths the Law Officers have always acted independently of
other Ministers and, indeed, of any other person. That duty is
now expressly set out in s48(5) of the Scotland Act 1998.
2. The Solicitor General is the Lord Advocate's
deputy. He may discharge any of the Lord Advocate's functions
where the office of Lord Advocate is vacant, the Lord Advocate
is unable to act owing to absence or illness, or the Lord Advocate
authorises the Solicitor General to act in any particular case
(Law Officers Act 1944, s 2).
3. The Scotland Act makes important special
provision for the role of the Lord Advocate. Her decisions as
head of the systems of criminal prosecution and investigation
of deaths are to continue to be taken independently of any other
person (Scotland Act 1998 s48(5)). It is outwith the legislative
competence of the Parliament to remove the Lord Advocate from
her position as head of the systems of criminal prosecution and
investigation of deaths (SA s29(2)(e)). Further, like the other
UK Law Officers, the Lord Advocate is given a particular role
in relation to ensuring that legislation passed by the Scottish
Parliament is within the legislative competence of the Parliament
(see paragraph 21 below), and has particular powers under the
Scotland Act in relation to the resolution of legal questions
about the devolved powers of Ministers and the Parliament ("devolution
issues"—see below, paragraph 27).
APPOINTMENT
4. The Law Officers are appointed by the
Queen on the recommendation of the First Minister, with the agreement
of the Parliament (SA s48(1)). Unlike other Ministers, however,
they cannot be removed from office by the First Minister without
the approval of the Parliament (SA s48(1)).
5. They are members of the Scottish Executive
(SA s44(1)(c)). As such they may exercise any of the functions
of the Scottish Ministers; acts of Ministers bind them and vice
versa (SA s52(3) and (4). This does not apply to the retained
functions of the Lord Advocate—in effect her functions in
relation to prosecution and investigation of deaths, and any other
functions conferred upon the Lord Advocate by name (SA s52(5)(b)
and (6)). (Nor does it apply to functions conferred on the First
Minister alone.)
6. There is no concept of a Scottish "Cabinet"
in the Scotland Act. The fact of a Cabinet, and the Ministers
who are members of it, are matters for the First Minister. The
Lord Advocate (or the Solicitor General in her place) is not a
member of the Cabinet but receives all papers and attends all
meetings. That position was confirmed by the First Minister in
his letter to the Lord Advocate on 12 October 2006, following
her appointment, when he stated: "you will, as Lord Advocate,
continue to attend Cabinet in order to provide legal advice and
to represent your own Ministerial interest, but, like [your predecessor]
you will not be a full voting member of the Cabinet". The
Lord Advocate's attendance at Cabinet and receipt of its papers
ensures that her interests, including her prosecutorial role,
are represented in collective discussion of the policies, resourcing
and operation of the Scottish Executive as a whole.
7. In the United Kingdom Government, the
position of the Attorney General as regards Cabinet has changed
over the years, just as has that of the Lord Advocate. Presently
he attends every meeting of Cabinet, receives all papers and participates
fully, as a Minister of Cabinet rank, but not as a member of the
Cabinet. He also attends sub-committees in much the same way as
the Lord Advocate does.
8. If a Law Officer is not an MSP s/he is
empowered to participate in the proceedings of the Parliament
but may not vote (SA s27). S/he can therefore be questioned by
MSPs about the exercise of his or her functions, although s/he
may not be required to answer questions or produce documents relating
to the operation of the system of criminal prosecution in any
particular case if s/he considers that it might prejudice criminal
proceedings or would otherwise be contrary to the public interest
(SA s27(3)). Under the Parliament's Standing Orders, written questions
about the operation of the systems of criminal prosecution and
investigation of deaths are answerable only by the Law Officers,
as are oral questions on those matters in all but exceptional
circumstances (Rules 13.5.1, 13.7.1 and 13.8.3).
9. A Law Officer may resign at any time
and must do so if the Parliament resolves that the Executive no
longer enjoys the confidence of the Parliament (SA s48(2)).
10. As noted above, the Lord Advocate's
position as head of the prosecution system and member of the Scottish
Executive, and her role in relation to devolution issues and the
competence of legislation, are enshrined in the Scotland Act.
Neither the Executive nor the Parliament can change that—it
would require legislation at Westminster.
THE SCOTTISH
MINISTERIAL CODE
11. The Scottish Ministerial Code (August
2003) sets out rules and guidance in relation to the roles of
the Scottish Law Officers.
12. The Code specifically sets out that
in criminal proceedings the Law Officers act wholly independently
of the Executive (para 2.25). Paragraph 2.5 excepts from collective
responsibility the Lord Advocate's functions as head of the systems
of prosecution and investigation of deaths.
13. As Law Officers, both the Lord Advocate
and the Solicitor General for Scotland have the ultimate responsibility
for advising the Scottish Ministers on all matters relating to
the law of Scotland. As the senior Law Officer to the Scottish
Executive the Lord Advocate provides legal advice on the full
range of the Executive's responsibilities, policies and legislation,
including advice on the legal implications of any proposals of
the Executive. The Code sets out guidance as to the circumstances
in which the Law Officers should be consulted. In particular it
provides that the Law Officers must be consulted in good time
before the Executive is committed to critical decisions involving
legal considerations. In terms of paragraph 2.22, the opinion
of the Law Officers should normally be obtained on a reference
from the Solicitor to the Scottish Executive and it will normally
be appropriate to consult the Law Officers in cases where:
(a) the legal consequences of action by the
Executive might have important repercussions in the foreign, European
Union or domestic fields;
(b) a legal adviser in the Scottish Executive
has doubts about the legality or constitutional propriety of proposed
legislation or executive action, particularly where it concerns
any devolution issue within the meaning of paragraph 1 of Schedule
6 to the Scotland Act 1998;
(c) ministers, or their officials, wish to
have the advice of the Law Officers on questions involving legal
considerations which are likely to come before the Cabinet or
any other collective Ministerial meeting; or
(d) there is a particular legal difficulty
that may raise political aspects of policy.
14. The Code also refers to the role of
Law Officers in relation to civil proceedings. In particular it
sets out a distinction to be drawn between proceedings in which
the Law Officers are involved in a representative capacity on
behalf of the Executive, and action undertaken by them on behalf
of the general community to enforce the law as an end in itself.
15. Paragraph 2.23 states that the fact
and content of opinions or advice given by the Law Officers, either
individually or collectively, must not be disclosed publicly without
their authority. (See paragraph 17 below.)
16. Paragraph 4.22 provides for the Lord
Advocate to be consulted, or to take the lead, where it is proposed
to appoint a judge or legal officer to a Royal Commission or Committee
of Inquiry.
DISCLOSURE OF
LAW OFFICERS'
ADVICE
17. By convention, the fact that the Law
Officers have or have not advised, or been asked to advise, on
a particular matter, and the content of any advice, is not disclosed
publicly without their authority. This convention is accorded
some recognition in the exemption provided by section 29(1)(c)
of the Freedom of Information (Scotland) Act 2002 for information
relating to advice, or a request for advice, by the Law Officers
(as well as in section 36(1)—confidentiality of communications
in legal proceedings). This exemption is however subject to the
public interest test in section 2 of the Act.
CIVIL FUNCTIONS
OF THE
SCOTTISH LAW
OFFICERS
18. The Lord Advocate is the principal legal
adviser to the Scottish Executive. Apart from the fact that she
has specific responsibilities in relation to the legislative competence
of Scottish legislation, she also advises on general legal issues
and has general responsibility for the provision of legal advice
to the Scottish Executive. She has Ministerial responsibility
for the Office of the Solicitor to the Scottish Executive ("OSSE"),
which provides legal advice to the departments of the Executive
on a daily basis, and for the Office of the Scottish Parliamentary
Counsel ("OSPC"), which drafts Bills for the Executive's
legislative programme.
OPINIONS
19. As noted above, the Scottish Ministerial
Code sets out the circumstances in which it is normally important
to consult the Law Officers. In practice what this tends to mean
is that the Law Officers may be asked for a formal Opinion where
there is disagreement within OSSE, or between OSSE and Whitehall
departments; where the matter is difficult or complex; or where
it may be politically or presentationally sensitive or high profile.
Their views may also be sought by way of a briefing note.
LEGISLATION
20. The Lord Advocate is a member of the
Cabinet Sub-Committee on Legislation and contributes in that and
other ways to the planning, management and delivery of the Executive's
legislative programme. She oversees the drafting of Executive
Bills by Scottish parliamentary counsel in OSPC. She maintains
an interest in the development of the devolved Scottish statute
book, including matters such as the accessibility of legislation.
21. Before a Bill can be introduced in the
Parliament by the Executive, the Minister responsible must state
that it is in his or her view within the legislative competence
of the Parliament (SA s31(1)). This view is reached on the advice
of the Law Officers. This is the only case in which the convention
against revealing the Law Officers' involvement in legal advice
is routinely departed from. (The Presiding Officer is also required
to take a view, which may be that some or all of the provisions
of a Bill are outwith competence—s31(2).)
22. The Lord Advocate also has the power
to refer a Bill to the Judicial Committee of the Privy Council
within the four week period after it is passed by the Parliament,
for a decision whether the Bill or any of its provisions are outwith
legislative competence (SA s33).
LITIGATION
23. Most civil litigation involving the
Scottish Ministers is conducted on behalf of Ministers by OSSE
(although in some areas, such as reparation actions, outside firms
are used). OSSE remains responsible to the Lord Advocate for the
conduct of all such litigation. Counsel are instructed by OSSE
for all litigation in the Court of Session.
24. The selection of counsel is a matter
for the Lord Advocate. She approves a list of junior counsel known
as Standing Junior Counsel who may be instructed by OSSE in litigation
involving the Executive. In cases where that is considered appropriate
senior counsel will also be instructed. The approval of the Lord
Advocate is sought in relation to the appointment of senior counsel
for a particular piece of litigation. On occasion one of the Law
Officers will appear in court in person to represent the Scottish
Ministers.
25. In conducting civil litigation OSSE
proceed on the instructions of individual departments subject
to the overall supervision of the Law Officers. Any decisions
as to the handling of a civil case are at the end of the day for
the Scottish Ministers collectively: if a Law Officer is appearing
for the Scottish Ministers in a civil case then, like any other
counsel, s/he acts on instructions from them.
26. By statute, a party raising an action
against the Scottish Executive may do so against the Lord Advocate
as representing it; and an action by the Scottish Ministers may
run in the name of the Lord Advocate (Crown Suits (Scotland) Act
1857 s1).
27. The Scotland Act makes provision for
the determination of devolution issues (in effect questions about
the legislative competence of the Parliament or the devolved competence
of Ministers—see Schedule 6, paragraph 1). Devolution issues
which arise in litigation anywhere in the UK must be intimated
to the Lord Advocate (as well as to the Advocate General). The
Lord Advocate (or the Advocate General) may also initiate proceedings
for determination of a devolution issue (SA Schedule 6 paragraph
4(1)), and is empowered to refer devolution issues arising in
litigation or otherwise to the Judicial Committee of the Privy
Council (see paragraphs 32-33).
28. The Lord Advocate also has a specific
statutory or common law role in relation to a number of types
of action. Commonly these will include matters such as actions
for declarator of death or actions for proving the tenor of a
will. The Lord Advocate's role in actions for declarator of nullity
of marriage or of divorce has recently been abolished, but actions
for declarator of marriage by cohabitation with habit and repute
continue to be served on her. It is very unusual for the Lord
Advocate to enter appearance in such cases, although it may happen
for example where an action for declarator of death has implications
for any criminal investigation. (Sometimes actions are served
on or intimated to the Lord Advocate when they clearly should
not be: in particular under section 11 of the Children (Scotland)
Act 1995—the court rules providing for this were revoked
in 2000.) It is for the Lord Advocate to ask the Court of Session
to declare a person a "vexatious litigant" so that actions
raised by that person are subject to special controls by the court.
She has specific duties under the Extradition Act 2003.
29. The Lord Advocate also has a general
"public interest" role in litigation. For example, she
is entitled to intervene in litigation in the public interest
where a proprietorial interest of the Crown or the interest of
a public trust is involved. Courts will sometimes require matters
to be intimated to the Lord Advocate because they consider that
there may be an element of public interest or public importance.
It is unusual for the Lord Advocate to become involved in such
cases, although the Law Hospital case (involving withdrawal
of nutrition from a patient who was in a persistent vegetative
state) is one example. The courts have also recognised the Lord
Advocate as the appropriate respondent where the competence of
an Act of the Scottish Parliament is challenged "as befits
his role as a Scottish Law Officer acting in the public interest"—Adams
v Advocate General 2003 SC 171.
30. The Lord Advocate also has a role in
relation to the reorganisation of public (non-charitable) trusts
under the Law Reform (Miscellaneous Provisions) (Scotland) Act
1990. Again these are fairly unusual.
31. The Lord Advocate is also responsible
for the appointment of an amicus curiae in a case where
the Court of Session has requested it. The arrangements are set
out in a Memorandum of Understanding with the Lord President dated
23 July 1999.
OTHER APPOINTMENTS
32. The Law Officers have a range of other
functions. For example, they are ex officio Commissioners
of Northern Lighthouses. They are both members of the Bible Board.
The Lord Advocate is a member of the Board of Trustees of the
National Library of Scotland, and one of the Commissioners for
the Keeping of the Regalia of Scotland. She provides advice to
the Privy Council in relation to certain charters. The Solicitor
General has certain ceremonial duties in relation to the General
Assembly of the Church of Scotland.
LSLA
January 2007
Annex B
KPMG ANNUAL LAW LECTURE: 28 FEBRUARY 2007
"THE LORD ADVOCATE IN THE 21ST CENTURY"
INTRODUCTION
It gives me great pleasure to speak here this
evening. I am very honoured to have been invited to give this
inaugural KPMG Annual Law Lecture. I hope it will be the first
in a long series. The subject I have chosen is the role of the
Lord Advocate in the 21st century.
As most of you here today know, I am privileged
to be one in a very long line of Lord Advocates of Scotland. While
the title has remained constant, the office is one which has developed
and changed as much as our nation itself. I would, however, venture
to suggest, that while most Scots are very familiar with the title
of the office and know that it is an intricate part of the legal
fabric and history of Scotland, there was, until recently, only
a limited circle of legal and political anoraks (if I may use
that term in a non-pejorative sense!) who had a full understanding
of the role, and fewer still who understand how the role and that
of Solicitor General for Scotland operate in action.
What I hope to do today is to set out the current
role of the Lord Advocate and to dispel some of the Tolkien-like
mythology which has, on occasion, given rise to some confusion.
Recently there has been a great deal of political
discussion of the role of the Law Officers, both north and south
of the border. The House of Commons Select Committee on Constitutional
Affairs has been examining the role of the Attorney General. This
investigation has revealed some differences between the views
of present and former Law Officers, even where the former Law
Officers are still members of the Government.
In Scotland, distinguished former Law Officers
(it is, I hope, a truth universally acknowledged, that former
Law Officers are invariably distinguished) have queried the role
of the Lord Advocate in Cabinet. Views have also been expressed
that, in their advisory role, the Law Officers should be more
"detached" from Government. In relation to their prosecution
functions, it has been said that they should be more accountable
and should publish police reports upon which decisions are made.
As I hope will become clear in the course of this speech, I think
it is perfectly valid and proper for people to debate the proper
role of Law Officers. I also believe it is important, though,
for that debate to be informed not only by history but, crucially,
by the needs of a modern 21st Century devolved Scotland. It may,
nonetheless assist that process to place the office of Lord Advocate
in its historical context.
Historically, the Lord Advocate, assisted by
the Solicitor General, has been responsible for prosecuting in
the name of the Crown. We do not know from what date the office
was established, but the first recorded Lord Advocate, of the
119 who have held the office, was Sir John Ross of Montgrenan,
who is formally mentioned in 1483. The duties were more onerous
then than now. In June 1488 Sir John was not only in the royal
army of James III against his rebellious son, he was sufficiently
courageous to endanger the life of the Prince. After the King
had lost the battle, the victorious rebels accused the Lord Advocate
of treason, condemned him to death (in his absence) and confiscated
all his lands. His cause was taken up by Henry VII of England,
and his lands were restored after the intervention of the Pope.
Along with these and other excitements (a Lord
Advocate was killed at the battle of Flodden) the holder of the
office became increasingly responsible for the system of public
prosecution in Scotland.
While it remains possible, in some circumstances,
for a private individual to mount a private prosecution, it is
very rare for such a thing to happen in practice. Since the passing
of the Crown Suits Act in 1857, the Lord Advocate has also been
responsible for litigation for and against the Crown—in
devolved terms, the Scottish Ministers—in Scotland.
The importance of the role has fluctuated in
accordance with the qualities of the person holding the position,
and the requirements of the time. Henry Dundas, who served as
Lord Advocate from 1775 to 1783, was later an associate, colleague
and confidant of William Pitt the Younger. Later, he was also
heavily involved at the highest levels of Government and across
a wide range of business, while the office of Lord Advocate was
held by his nephew Robert. And it is possible to find, among the
earlier holders of the office, persons who appear to have allowed
their party loyalties to outweigh their independent judgment—at
least in politically sensitive trials. It was Robert Dundas who
conducted the prosecution, for sedition, of Muir, Palmer and others
seeking political reform in the 1790s.
PLURALITY IN
PUBLIC INSTITUTIONS
The notion of office-holders—whether prosecutors
or judges or politicians—who allow their personal interests,
be they family, or financial, or party political to come before
the public interest, is not new. It has been a feature of the
development of every society struggling towards the ideal system
of administration. Such a system does not come about only by the
establishment of institutions with a capacity for, and the appearance
of, independence, because institutions are run by people, and
if the people are not playing their part, if they are not worthy
of the trust placed in them, then the institutions will fail.
And it appears that any person or institution, given power and
authority uncontrolled by outside influence, is at risk from the
temptation to use that power and authority for improper purposes.
The safeguard lies in creating and encouraging
a plurality in public life, a system of checks and balances in
which the powers conferred upon people and institutions are subject
to control and scrutiny by other bodies, who may be politically
and institutionally disparate, but who share a common concern
for good administration in the public interest. Within such a
system, it should be possible for society to confer, where necessary,
discretion on particular office-holders, secure in the knowledge
that there are appropriate safeguards against inefficiency or
improper use of powers. Even when created, however, such a system
requires constant monitoring. I would like this evening to examine
the role of the Lord Advocate against that background.
In more recent times, and particularly since
the creation of the post of Secretary of State for Scotland in
the early part of the twentieth century, the role of the Lord
Advocate has been confined largely to the provision of legal advice
to the Government and the prosecution of crime in Scotland. Certainly,
until some seven years ago, the Lord Advocate was also heavily
involved in the process of selecting judges and sheriffs. That
has, quite properly, gone with the creation of the Judicial Appointments
Board.
While a recently published newspaper article
on the role trumpeted in its headline "Honey—I shrunk
the Lord Advocate!" (in a note of apparent rebuke and lament),
my own view, for what it is worth, is that the significant restriction
of the Lord Advocate's present functions is wholly consistent
with the needs of a mature democracy in the 21st Century.
Indeed, the role post-devolution is much more
limited than it ever was pre-devolution. But it is still an extensive
role. There has recently been prepared a note of the functions
of the Lord Advocate—[you can find it on the Scottish Executive's
website[16]]—which
sets out the various current responsibilities of the office. Apart
from the continuing functions of criminal prosecutions, investigation
of deaths and legal advice to the Scottish Ministers, the most
esoteric functions now relate to Scotland's lighthouses and the
Bible Board for Scotland.
But there remain issues as to whether a Scottish
Minister can or should combine the functions of chief prosecutor
and chief legal adviser to the government. Is the office—though
much restricted—still in need of further shrinkage?
It may be sensible to place the office in its
modern, post-devolution, context by looking briefly at the position
prior to the passing of the Scotland Act, in order to find out
what has changed. I have to say that I am reluctant to look back
too sentimentally at pre-devolution experience. Scotland and its
institutions have moved on, and should be judged on their contemporary
merits. I myself am more interested in making things work today
than in comparing them with what happened in the past. But it
is from the perspective of the past much of the criticism has
come, so it does no harm to consider it on that comparative basis.
Before devolution, both the Lord Advocate and
Solicitor General were Ministers in the United Kingdom Government.
In addition to their long standing responsibility for criminal
prosecutions, they were chief legal advisors to the United Kingdom
Government on Scots Law. So far as criminal prosecutions were
concerned, the Lord Advocate and the Solicitor General dealt with
matters in a traditional way. One or other—and sometimes
both—of the Law Officers were in London for three to four
days a week. In London they attended Cabinet committees and took
part in the business of Parliament.
The system worked as it had done for many years.
Decisions as to prosecution were recognised by Westminster as
being for the Lord Advocate alone. Parliament at Westminster exercised
a kind of self-denying ordinance in relation to the prosecution
side of affairs, and did not seek to examine the details of prosecution
decisions. But scrutiny was not absent. In late 1981, in what
became known as the Glasgow rape case, Crown counsel decided not
to prosecute three persons accused of rape, because of medical
reports that a prosecution would damage the health of the complainer.
The complainer subsequently asserted that she was perfectly willing
and able to give evidence, and in January 1982 the then Lord Advocate,
Lord Mackay of Clashfern, had to explain the position in the House
of Lords, while the Solicitor General for Scotland made similar
explanations in the Commons.
Nor were these sessions purely formal. Before
his statement to the House of Commons, the Solicitor General was
thought to have provided information to the media which was different
to that which he provided to the House, and he was, in effect,
compelled to resign after a devastating onslaught from Opposition
MPs in the House.
On the civil side of business, any idea that
Law Officers were not legally involved in policy matters is an
illusion. Particularly in the House of Lords, Law Officers were
used to steer through Government legislation, including both the
1978 and the 1998 Scotland Acts, as well as dealing with the usual
advisory functions of the office. The Lord Advocate also had a
discrete portfolio policy in relation to the law of evidence.
The net effect of these arrangements was that
the Scottish Law Officers, by reason partly of the way in which
Government operated, and partly of the fact that much of Government
work was carried out in London, were less visible to the Scottish
community and the extent of their responsibility was less apparent.
So what changes have come about as a result of devolution?
CONSTITUTIONAL CHANGE
ON DEVOLUTION
There can be no doubt that the fact of devolution
has, from a public lawyer's point of view, changed life radically
in Scotland. We now have a Parliament passing laws down the road.
We have close scrutiny of the Executive's decisions. We have,
generally, a much more responsive, accountable system of government
across a very wide range of public activities. Essentially, the
effect of the Scotland Act is to provide Scotland with a written
constitution.
The Parliament, and the Executive, are placed
in a constitutional relationship with each other, with defined
legislative and executive competences, and with settled relationships
with the other parts of the United Kingdom. Part of that process
of writing down the constitutional position was to define the
role and place of the Lord Advocate, as I shall now attempt to
explain. It is necessary to explain it, because many of the changes
suggested in the position of the Law Officers would simply not
be possible for the Scottish Parliament or the Scottish Executive
to achieve. That is not to say that these provisions could not
be changed but there are clear limits to what may be done to change
the position of the Lord Advocate within the framework of the
Scotland Act. The Scotland Act places both Law Officers—and
particularly the Lord Advocate—in a special position.
First, it is outside the competence of the Parliament
to remove the post of Lord Advocate from its position as head
of the systems of criminal prosecution and investigation of deaths
in Scotland.
DEVOLUTION ISSUES
Second, while the Lord Advocate has long had
the right to act in the public interest in certain circumstances,
she is given a new specific civil constitutional role in relation
to legislation of the Scottish Parliament. Like the other law
officers, the Attorney General and the Advocate General for Scotland,
the Lord Advocate has the right—and probably the duty—to
refer any legislation of the Scottish Parliament to the Judicial
Committee of the Privy Council if she considers that it is outside
the competence of the Parliament. That is a separate statutory
"public interest" role conferred directly on the Lord
Advocate as holder of that office. It sets her apart from the
rest of the Scottish Ministers because it is a responsibility
which she must exercise independently. It makes the Lord Advocate
into a sort of constitutional policeman over the legitimacy of
the legislation passed by the Parliament.
The Act provides for that responsibility, that
exercise of discretion, to be carried out after Stage 3 and before
Royal Assent. But that might be seen as something of an exceptional
measure. So the Act also provides that a member of the Executive
in charge of a bill must certify to the Parliament, before introduction,
that the Bill is within the competence of the Parliament.
A similar duty is placed on the Presiding Officer.
In practical terms, so far as the Scottish Ministers are concerned,
this means that during the life of a Bill the Law Officers will
be asked for legal advice to ensure the bill remains within competence.
If there were ever a question of legislation being put forward
by the Executive which the Lord Advocate did not approve, there
would be a constitutional crisis within the Executive. The final
check on that particular exercise of responsibility is, of course,
with the courts, with the Judicial Committee of the Privy Council.
SCOTTISH MINISTERS
Next, section 44 of the Act provides that both
the Lord Advocate and the Solicitor General are Scottish Ministers.
Section 52 of the Act provides that the Scottish Ministers are
collectively responsible for everything done by any of them. It
is a sort of "one for all and all for one" provision.
It sets out in print for Holyrood the doctrine of collective Ministerial
responsibility which is established by convention at Westminster.
So, like it or not, the Lord Advocate is fixed with responsibility
for all of the decisions of Scottish Ministers.Since the Lord
Advocate's responsibility, on the civil side of business, lies
in advising on legal matters, and the office carries no responsibility
for policy on non-criminal matters, her interest in other Ministers'
actions is to see that they are carried out within the legal structure
of the Scotland Act.
RETAINED FUNCTIONS
Finally, on this matter, the Lord Advocate's
functions as chief prosecutor and head of the system of investigation
of deaths, and any statutory responsibilities conferred on her
alone, are kept outside that collective responsibility.[17]
So my decisions as chief prosecutor are not subject to any kind
of collective ministerial decision making process. And to make
that even clearer, section 48 of the Act provides in terms that
"any decision of the Lord Advocate in his
capacity as head of the systems of criminal prosecution and investigation
of deaths in Scotland shall continue to be taken by him independently
of any other person".
That last provision is not new law. It is not
some novel concept inserted into the business of government in
Scotland for the purposes of devolution. It is, as the use of
the word "continue" suggests, a re-statement of what
has always been the position. It is recognised as one of the most
important aspects of the Lord Advocate's role in relation to prosecutions,
that prosecution decisions must be taken by him or her alone,
and in the public interest.
PROSECUTION IN
THE PUBLIC
INTEREST
That does not mean that the Lord Advocate in
the prosecutorial context operates in a vacuum, as some sort of
automaton, prosecuting whenever a set number of pieces of evidence
become available.
The public interest has many aspects. The prosecution
of crime is an important public interest. But so, for example,
is safety on oil rigs. If there is an offshore accident, there
may be a question of criminal proceedings. The persons involved
may be those who know how the accident came about. If they are
faced with possible prosecution, they may refuse to say what happened.
Is it more important to find out what happened, so as to prevent
it from happening again, or to keep open the prospect of a criminal
prosecution against the greatest number of potential accused?
Or if a prosecution will have the effect of damaging the health
of the complainer beyond repair, is the prosecution of the offender
more important than that damage to the victim? If the prosecution
of a spy can only succeed by revealing in court information about
our intelligence-gathering capabilities, which is more important?
And, to look at a more mundane example, which has actually occurred,
if an 85-year-old woman neglects her cat, should she be prosecuted?
More generally, if there is a prospect of persuading
people to hand in dangerous weapons, and the police want to have
a knife amnesty, should the Lord Advocate block that by pointing
to the letter of the law? The natural tension between accountability
of the public prosecutor and her independence can make the prosecutor's
life a tough lot. The ability to resist political whim, pressure
group or transient media clamour of what should be prosecuted
or not is vital.
Instead, prosecution must truly reflect the
public interest in a considered and independent fashion. It is,
in my experience, rarely a process which receives unqualified,
unanimous acclaim. Prosecution to please may be a quick fix. It
may gain superficial popularity but it would surrender the very
foundations of what supports a sound system of justice. The provision
safeguarding that independence in the Scotland Act recognises
those realities.
PROSECUTION AS
A NECESSARY
FUNCTION OF
GOVERNMENT
But, it is said, it would be better if these
prosecution decisions were taken by someone who is "independent"
of Government. As I have explained, it is not possible, within
the structure of the Scotland Act, for the Scottish Parliament
or, indeed, the First Minister, to bring about a situation in
which the Lord Advocate is separate from the Scottish Executive.
That would require primary legislation at Westminster. But even
if it were possible, would it be desirable?
The prosecution of crime is one of the most
fundamental tasks of government in the widest sense. As a society,
we have decided, over the years, that it is dangerous to leave
the prevention of crime in the hands of private individuals. We
have decided that we do not want gangs of vigilantes roaming our
streets and ordinary citizens going about armed so as to protect
themselves from criminals. Nor do we leave it to private citizens
to decide whether or not to take criminal complaints to the courts.
We assert that there is a public interest beyond that of the injured
citizen in the prosecution of crime. We have therefore handed
responsibility for these critical matters to the state, to the
government. In modern Scotland that means an administration formed
from a democratically-elected Parliament. We look to that administration
to provide not only an efficient police force but also an effective
system of prosecution and justice. Prosecution is not a function
which can be farmed out to somebody sitting to one side of government.
It is one of government's most important responsibilities. It
lies at the heart of the social contract between citizen and state.
Certainly, prosecution must be subject to proper
safeguards; it must be undertaken in a way which does not prejudice
the interests of the innocent individual; it must be undertaken
for correct reasons of criminal justice, not to serve the political
aims of the party in power, or the personal interests or whims
of the prosecutor. And those exercising these vital functions
must be held properly to account for the manner in which they
exercise their responsibilities. In our system, that general accountability
is to the Scottish Parliament. Indeed, it is only if the prosecution
function is carried out as part of government that proper accountability
is secured. If the system of prosecution breaks down, it is the
Lord Advocate who has to account for that to the Parliament. And
that is correct.
The fact that prosecution decisions are taken
independently does not mean that they are taken unaccountably.
It is for the Parliament to decide whether the Lord Advocate is
carrying out that vital function to its satisfaction, not as a
matter of party politics, but as a matter of sound administration.
It would be wrong to seek to allocate that function to some semi-detached
outside body. The prosecution system is intimately bound up with
the resource provided by the Scottish Ministers, and with the
aims of the criminal justice legislation put in place by the Parliament
on the basis of proposals made by the Scottish Ministers. The
further the prosecution system gets from the central core of government
responsibility, the less easy it is to hold Ministers as a collective
body responsible for how it is operated.
ACCOUNTABILITY
The result is that the present system leaves
an inefficient Lord Advocate, or an irresponsible Scottish Executive,
nowhere to hide. If the prosecution system fails, then the Parliament
can hold the Lord Advocate, and the administration of which she
forms a part, accountable for that failure. That is as it should
be. For my part, I am content to be accountable to the Parliament.
As Lord Advocate, I exercise considerable powers,
and carry great responsibilities. And no sensible Minister ever
takes Parliament lightly. I note, in passing, that the Justice
Committees of the Scottish Parliament routinely scrutinise the
work of the Law Officers. That notion is also now being discussed
at Westminster. I would like to make one further point, touching
on accountability. The prosecutor's judgement in starting a prosecution
is clearly justiciable in the courts. That it as it should be.
No doubt, if too many pleas of "no case
to answer" were sustained, then searching questions would
properly be asked about the quality of the decision-making processes.
While my predecessor, Lord Boyd, took the unprecedented step in
2004 of agreeing, so far as possible, to give reasons to victims
for decisions to take no proceedings, the evidence which forms
the basis of those decisions remains confidential. Successive
Lord Advocates have been reluctant to enter into discussion on
these matters, for two reasons.
First—the gathering of evidence for criminal
prosecution depends to a large extent upon the confidence of those
interviewed that the information they give will be unattributable
unless proceedings are taken in court. (eg. On occasion the evidence
may come from an informant and disclosure could lead to loss of
life.)
Second—if a decision is taken not to prosecute
someone, that person is presumed to be innocent. He or she is
entitled to the same protection from the law and the legal system
as everyone else. Anything otherwise would simply result in a
trial by media without the systems of checks and balances which
would be a fundamental right in any trial.
I, of course, accept that a lack of prosecutions
is, in general, a proper subject for public comment and debate.
We recently investigated why, relatively speaking,
it appeared fewer complaints of rape resulted in prosecution in
Scotland than in other countries. And if there were a notable
failure to take proceedings against people alleged to be breaching
European legislation, it would be equally legitimate for the European
Commission to seek an explanation.
CIVIL ADVICE
I turn to consider the Lord Advocate's position
in relation to civil advice. As I have indicated, the Lord Advocate
is fixed with a statutory duty to scrutinise the legislation of
the Scottish Parliament to make sure that it is within competence.
After that legislation is in force, she is charged with the responsibility
for defending it in the courts. In addition, she is the chief
legal adviser to the Scottish Executive. And this is another issue
which has attracted comment recently.
It is said by some observers that the legal
advice to the Executive could also be more detached, more independent.
It is said that the Lord Advocate should not be a member of the
Scottish Cabinet, because that gives the office-holder too great
an influence on policy decisions in which she has no or should
have no interest.
DEMOCRACY AND
AUTHORITY
It is one of the apparent ironies of the second
half of the 20th Century—and the first part of the 21st—that,
at the same time as we expect Government to do more, so we limit
its freedom of action. I say "apparent" because it fact
comes from a healthy tension between institutions. It is a real
example of the pluralism to which I referred earlier. We seek
more and more positive intervention by government, through the
great codes on social security, social work, education, health,
housing roads and planning. And at the same time as we look to
Government to provide a regime which will deliver all things to
everyone, we scrutinise its actions, limit its discretions, distrust
its intentions and expect the courts to save us from its excesses.
The whole—welcome—development of judicial review is
a response by the courts to the increasing trend of Parliament
and Government to intervene in more and more detail in the life
of the nation.
It is good that we should expect government
to do much, and that we should at the same time expect government
to exercise its functions within the law. But how does that work
in the civil legal sphere? It is a truism that the Scottish Executive
does not knowingly act unlawfully. But that is a very negative,
parsimonious way of putting the proposition. In fact, government,
in Scotland is positively determined to act lawfully.
At its most fundamental level, a constitutional
administration wishes to work within the limits of the constitution.
It is defined by its place in the constitutional framework and
seeks to operate accordingly. It is sufficient for me to say that
the Scottish Ministers want to work within the limits set by the
Scotland Act and by the broader constitutional framework of the
United Kingdom. They do not wish to do things outside those limits.
They are conscious that they are working within a system where
a very great deal of policy is delivered by means of detailed
regulation.
Much of that regulation will, in the nature
of things never be scrutinised closely by bodies outside Government.
That should not and does not relieve the Government from the responsibility
of ensuring, so far as is possible, that it is acting within the
powers conferred on it by Parliament. And so, even where there
is a very low risk of challenge to a piece of legislation or a
Ministerial decision, the Executive is actively concerned to make
that regulation, or take that decision, within what is allowed
by the constitution. At the same time, Ministers naturally wish
to be able to do everything which the constitution allows. They
have manifestos and policies which they wish to deliver and which
they are entitled to deliver. And, as I shall explain in a moment,
they do not want lawyers to place unnecessary obstacles in their
way. Of course in this world it is never sufficient to rely on
somebody's good intentions. It is also sensible, as I have already
noted, to have a proper system of checks, balances and quality
control in place. In the case of the acts of the Scottish Ministers,
we have the Scottish Parliament, the Scottish media and the Scottish
courts.
All of these bodies, in their different ways,
and from their different perspectives, subject the legislative
and executive actions of the Executive to scrutiny.
So how do we seek to achieve this recognition
of and compliance with the law? We do it by ensuring that consideration
of legal issues and the legitimacy of proposed action is built
into the decision making process. In a democracy where the freedom
of action of Scottish Ministers is absolutely constrained by considerations
of European law, of Human Rights law and of United Kingdom constitutional
reservations, it is necessary for Ministers and those acting in
their name to ensure that any action they propose to take is taken
within those restraints.
This work is largely carried out by the Scottish
Executive's in-house lawyers, in the Office of the Solicitor to
the Scottish Executive. That office is responsible for advising
administrative colleagues and the Ministers as to the correct
legal position in any given situation. It is also responsible
for drafting subordinate legislation and instructing primary legislation.
With the Office of the Scottish Parliamentary Counsel, it provides
the whole of the core public law legal service to the Scottish
Ministers.
In terms of control, as a civil legal resource
for the whole of the Scottish Executive, it operates under the
general supervision and superintendence of the Law Officers. This
is one of the biggest—and I would say most beneficial—developments
following devolution.
The Law Officers are briefed weekly on matters
of legal interest across the Executive. When any such matter becomes
sufficiently important or critical, it can be referred in more
detail to them for a formal opinion. So legal issues are dealt
with by a single office which reports to the Law Officers, which
can identify legal issues of general application, and which can
ensure that they are handled in a consistent way across the whole
range of the Executive's business. Policy Ministers can be assured
that their Ministerial level advisers, the Law Officers, are aware
of the important matters in each policy area.
It was Harold MacMillan who identified "events"
as the factor which complicated the life of politicians. It was
so in his day and it is so now. It is outside events which determine
the day to day political priorities of Ministers in any Government.
Where, as in Scotland, that Government is a
coalition, handling those events becomes even more challenging.
Further, one of the strengths, in my opinion, of the new Parliament
in Scotland is that voting patterns are not as predictable as
at Westminster. This results, in broad constitutional terms, in
an administration which is more responsive to the legislature.
Accordingly, when events happen, there is a process of negotiation
between the different parts of the coalition to settle a policy
and that negotiation has to take account of the real or perceived
sensibilities of the backbench members of both sides.
Given the urgency with which things happen,
and the requirement for the Executive to be able to put out a
settled policy line within short timescales, the process simply
does not allow for lengthy ruminations when a concluded policy
is referred to the Law Officers for a formal view as to its legitimacy.
Indeed, since questions of legislative or devolved competence
may be involved, legal advice is frequently necessary at several
stages in the negotiation process. If the development of policy
is to be properly informed by legal considerations, that legal
consideration must be built into the process. A "detached"
legal adviser who would be brought in and out would be like a
legal yo-yo constantly trying to catch up with discussions in
order to provide sensible advice.
I am perfectly well aware that in former times,
when matters were more leisured, it was possible only to involve
the Law Officers on the basis of long matured legal submissions.
Sometimes these were referred to as "Memorials for the Opinion
of the Scottish Law Officers".
There are even people in the office old enough
to remember the time when such memorials were stitched up with
pink cord. To people who look back longingly to those days and
wish that they were still with us I can only offer my sympathy
(and my envy!). Life has moved on.
If a modern Government is to operate within
the law but at the speed demanded of it by modern events, a modern
media, a modern Parliament and a modern electorate, its legal
advisers at all levels must be informed not only of its broad
policy intentions but also of how its policy is developing. They
must be able to input legal content to that process as it continues.
This is because, however quickly a policy is formulated, it goes
out as a considered policy of the administration and it is subject
to the same legal controls and scrutiny from the courts as the
longer-term projects.
In any event, in the context of the Scottish
Executive, and in relation to civil matters, the Lord Advocate
and the Solicitor General are, whether they like it or not, members
of the Scottish Executive. They are Scottish Ministers. They are
responsible along with their fellow Ministers for the policies
and decisions of the Scottish Executive and, since their contribution
to that policy making process is legal, it is their duty to make
sure that those policies are within the law.
CONFLICT OF
INTEREST
In any professional occupation there is a possibility
that a conflict of interest will arise, where one's personal interests,
or the interests of an existing client, are at variance with those
arising in some new piece of business and professionals develop
ways of dealing with that. Normally they simply decline to do
the new business which will cause the conflict.
That happens to prosecutors as much or as little
as it does to other professionals so it will occasionally happen
that a procurator fiscal will find that the police have made a
complaint in relation to somebody who is personally known to the
fiscal. Where that occurs, the solution is simple. The fiscal
hands the papers in the case to another without the personal knowledge.
Similarly, a judge who finds that a litigant—or an alleged
criminal—appearing before him is known to him personally,
will decline to act.
The Scottish Law Officers operate in the same
way. If it should happen that criminal proceedings were contemplated
against someone who is a personal friend, a family member or a
professional or political colleague of a Law Officer, he or she
would not deal with that matter but would instead pass it on to
be dealt with elsewhere. In fact, in Scotland, the custom is that
where such a matter arises, it is dealt with by a procurator fiscal
and anonymously by one or more Crown Counsel without reference
of any sort to the Law Officers. In that way, although Crown Counsel
is acting in the name of the Lord Advocate and has all the powers
of the Lord Advocate, he or she does not refer any decisions in
that case to the Lord Advocate or Solicitor General personally.
In relation to civil business, it is difficult
for there to be a conflict between the Lord Advocate's interest
as a legal adviser and the advice which she gives to her Ministerial
colleagues. There was a time when the Lord Advocate had certain
policy responsibilities in the civil area as well as her responsibilities
in relation to criminal prosecution but those have long come to
an end.
The Lord Advocate has no policy interest in
the legal questions which come before the other Ministers in the
Scottish Executive and has no interest except in advising them
to the best of her ability about those legal questions.
NATURE OF
ADVICE
It is important to realise what the function
of the Lord Advocate is, when she is advising Ministerial colleagues
on legal issues.
As I have already indicated, there are areas
where the Lord Advocate is effectively acting as a free-standing
constitutional policeman. That is a substantial part of the Lord
Advocate's legal advisory activity, and clearly the most important
one. But the more usual part of the Lord Advocate's function is
to advise Ministers as to the possible legal implications of carrying
out a particular policy in a particular way. It is not the function
of a legal adviser to seek to use the law or his knowledge of
the law to determine the policy of his client except in areas
where the law is so clear that no legal argument really arises.
Still less is it the function of the Law Officers to seek to determine
what that policy should be.
The Lord Advocate's duty is to the law not to
party politics. The basic, fundamental function of the legal adviser
is to identify two risks. The first is the likelihood that there
will be a legal challenge to the policy. The second is the likelihood
that any such challenge will succeed. Sometimes the risk of a
challenge will be clear, and Ministers will require no advice
on that issue but the question of how successful any challenge
is likely to be is very much a legal judgment.
It is the function of the legal adviser to quantify
both of those risks to the best of her ability. It is then for
the policy Minister to make a decision. I suppose that my fundamental
objection to the idea of separating the legal advisory function
from government is that government is not and cannot be like that.
Government—in this country at least—is within the
law or it is not government at all. You cannot have a government
where legal considerations are a kind of add-on extra, where the
law is a sort of garnish which you dab on the top when the cooking
is finished.
When I was a child we used to go on day trips
to Largs, and my parents used to buy us sticks of rock, with the
word "Largs" running through from end to end. That is
how law and legal advice run through the operations of government
Wherever you break into the processes of Government you find an
appropriate level of legal input, running evenly through the operation.
Neither is legal advice some kind of barrier
to the work of government. Rather it is a light showing the way
through what can sometimes seem like a constitutional jungle.
Where paths diverge, it informs—but does not take—the
choices open to policy-makers.
So, what is the attitude of Law Officers to
the rest of the Scottish Ministers? Should Law Officers be detached,
distant, standing upon their professional status, the guardians
of constitutional mysteries not properly understood by non-lawyers,
making Delphic, ex cathedra pronouncements upon proposed
policies? Or should they be colleagues of Ministers using their
knowledge of law to assist the lawful development of policy?
Party politics does not enter the matter, nor
does it need to in the devolved context. What is necessary is
that policy choices made by Ministers are properly informed by
sound legal advice.
The Lord Advocate's role in attending Cabinet
is also one which has attracted some debate. There is no concept
of a Scottish "Cabinet" in the Scotland Act. The fact
of a Cabinet, and the Ministers who are members of it, are matters
for the First Minister. The Lord Advocate (or Solicitor General
in her place) is not a member of the Cabinet but receives all
papers and attends all meetings for the purpose of providing legal
advice where required. The Lord Advocate's attendance at Cabinet
and receipt of all its papers also ensures that her interests,
including her prosecutorial role, are represented in collective
discussion of the policies, resourcing and operation of the Scottish
Executive as a whole.
The ability to address cabinet reinforces the
strength of the office in fending off any potential for innocent,
but inappropriate, incursions into my independent duties. The
alternative would be to rely on some other Minister with a wider
portfolio to do so. Just as the law and the need for legal advice
permeates all of the activities of the Executive—the implications
of enforcement of proposed policies will include repercussions
for the prosecution—including costs and resources.
Independence is not just about decision making
in individual cases. It is about the resources and structures
to make those decisions independently. A reliance or dependency
on another Minister to bid for those resources may be construed
as likely to diminish rather than enhance the independence of
the office. Any changes in that arrangement would therefore need
to ensure that these aspects are addressed.
Ladies and Gentlemen, I hope I have shown that
the current roles of the Lord Advocate are not some kind of constitutional
anomaly; some kind of aberration in the Scottish body politic.
As set out in the Scotland Act, the duties and
responsibilities of the office reflect the careful consideration
which has also created a properly functioning Parliament and Executive
for the Scottish people.
I am as conscious and as proud of being part
of a modern constitution as I am of standing in a line of Lord
Advocates stretching back to the reign of James the Third. Of
course there are other, perfectly legitimate, ways of providing
the functions which the Lord Advocate carries out and it is for
others, not me, to determine what those might be. But, I do believe
that the office in its current form is a sensible and effective
contributor to good government in Scotland.
If any changes are made I hope they will take
into account the practical as well as the theoretical needs of
good governance in Scotland as well as the public interest. While
the office of the Lord Advocate may have shrunk from the grandiose
days of Dundas, I have no doubt that, in this case, small is beautiful
and much more appropriate for the 21st century. And while the
role exists in its current form I am determined to do what I can
to live up to the finest traditions of my office in both its civil
and criminal responsibilities.
Thank you.
16 http://www.scotland.gov.uk/About/Departments/LPS/rolelordadvocate Back
17
Section 52(6)(a) Scotland Act 1998. Back
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