SNP set to split dual role of lord advocate in historic move

Lord Advocate Dorothy Bain KC provides legal advice to the Scottish Government, but is also the ministerial head of the Crown Office and Procurator Fiscal Service
Lord Advocate Dorothy Bain KC provides legal advice to the Scottish Government, but is also the ministerial head of the Crown Office and Procurator Fiscal Service

THE dual role of the lord advocate looks set to end in one of the biggest overhauls of the Scottish legal system in more than 300 years.

The role is currently held by Dorothy Bain KC and involves providing legal advice to the Scottish Government on its responsibilities, policies and legislation, while also serving as the ministerial head of the Crown Office and Procurator Fiscal Service.

But an expert report into the lord advocate is expected to be handed over in the coming weeks which will kickstart a push to separate the role amid concerns that the dual responsibilities are a conflict of interest.

Joanna Cherry's private member's bill that would have devolved the power to Holyrood to amend the role will fall when parliament goes into prorogation before the July 4 General Election, but she has said she will pursue it if re-elected.

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She said on Twitter/X: "Lord advocate’s dual role set to end. Delighted this policy which I’ve championed will be taken forward by SNP. #GE24 means my private members bill devolving the power to address this anomaly will fall but if re-elected I shall pursue."

Before devolution the lord advocate was a minister in the UK government and advised on Scottish legal matters, both civil and criminal. The post has existed in some form for more than 300 years.

The report by Malcolm McMillan, the chief executive of the Scottish Law Commission and former government lawyer, will look at the lord advocate and the solicitor-general, the junior law officer position, and compare how the roles work against other countries.

Angela Constance, the Scottish justice secretary, said the report would contain a “summary of insights and comments on the Scottish law officers’ roles from former and current holders of these offices and relevant officials”.

Conservative MSP Russell Findlay said the dual role "creates a minefield of potential conflicts" and is "clearly untenable".

The head of the prosecution service and the chief legal adviser to the government posts in England are held by different people to avoid any possible conflict of interest or perception of such.

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The attorney-general in Ireland used to act as the chief legal adviser to the government and head of the country’s prosecution service, but the roles were split under legislation passed in 1974.

In 2021 a survey by Scottish Legal News found that 81.4% of the 350 lawyers questioned wanted the role divided into equivalents of an attorney-general and a director of public prosecutions that exist in other jurisdictions.

A Scottish Government spokesperson said: “The Scotland Act emphasises the law officers’ complete independence from any other person as they undertake their prosecutorial and investigation of deaths functions — a principle they uphold in everything they do. Any changes in proposed legislation must continue to allow the law officers to operate independently."