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Her Majesty's Advocate (or when the monarch is male His Majesty's Advocate), known as the Lord Advocate ( ), is the chief legal officer of the Scottish Government and the Crown in Scotlandmarker for both civil and criminal matters that fall within the devolved powers of the Scottish Parliamentmarker. He or she is the chief public prosecutor for Scotland and all prosecutions on indictment are conducted by the Crown Office, nominally in his or her name.

The officeholder is one of the Great Officers of State of Scotland. The current Lord Advocate is the Rt. Hon. Elish Angiolini, QC, appointed on 5 October 2006. She is the first woman, first Procurator Fiscal, and the first solicitor to be appointed to the post.

History

The office of Advocate to the monarch is an ancient one. The first recognised Lord Advocate was Sir John Ross of Montgrenan, recorded in 1483 as serving King James III.

From 1707 to 1998 the Lord Advocate was the chief legal adviser of the government of the Kingdom of Great Britainmarker and the Crown in Scotland, for both civil and criminal matters, until the passing of the Scotland Act 1998 which 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, section 44 of the Scotland Act 1998 provides that the Lord Advocate is automatically a member of the Scottish Executive.

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 Commonsmarker or the House of Lordsmarker to allow them to speak for the Government. Those who were not already Members of Parliament received a life peerage on appointment. Since devolution, section 27 of the Scotland Act 1998 permits the Lord Advocate and the Solicitor General for Scotland 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 has been appointed to the bench, either on demitting office or at a later date, and of the more recent former Lord Advocates all except Henry Stephen Wilson, Pete Fraser and Colin Boyd have been appointed to the bench. 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.

Crown Agent

The Crown Agent is the principal legal advisor to the Lord Advocate on prosecution matters. He also acts as Chief Executive for the Department. He acts as solicitor in all legal proceedings in which the Lord Advocate appears as representing his or her own department. They issue general instructions from the Lord Advocate 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 Justiciarymarker. 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

Call for Lord Advocate to be disempowered

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."

It appears that the judges of Scotland's supreme court have come to share this view. In a Sunday Herald article dated 2 November 2008, it is reported that in their submission to a commission set up to consider how the devolution settlement between Scotland and the United Kingdom could be improved, the judges recommend 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. The article reads in part:
'In their report, the judges say the Lord Advocate's dual roles have generated scores of [human rights] challenges, gumming up the justice system.
The opportunity "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 judiciary offer three possible solutions to the problem, but do not come down in favour of any particular one.

'They write: "Her responsibilities as the public prosecutor could be transferred to an independent Director of Public Prosecutions' in Scotland, who would be responsible for the prosecution system, but who would not be a member of the Scottish Executive (sic).

"Such a change would rob the Lord Advocate of most of her functions, but would leave the Scottish Executive with a Lord Advocate who was a general legal adviser to the Executive."

'They also suggest Westminster could amend the Scotland Act to explicitly exempt the Lord Advocate's actions as a prosecutor from compliance with the European Convention on Human Rights.

'A third possibility would be changing the law on criminal appeals, although they warn "such a radical nature would be likely to generate considerable controversy".'

The judges' full submission can be accessed here("Judiciary in the Court of Session" just over half way down the list headed "Miscellaneous Submissions").

Lords Advocate



See also



References

  1. The constitutional role of the Attorney General: fifth report of session 2006-07, UK Parliament Constitutional Affairs Committee, Ev 96
  2. "Lord Advocate excluded from new Cabinet", The Scotsman, 23 May 2007


Sources

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


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