Lord Advocate
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His Majesty's Advocate, known as the Lord Advocate (Template:Langx), is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolved powers of the Scottish Parliament. The Lord Advocate provides legal advice to the government on its responsibilities, policies, legislation and advising on the legal implications of any proposals brought forward by the government. The Lord Advocate is responsible for all legal advice which is given to the Scottish Government.[1]
The Lord Advocate serves as the ministerial head of the Crown Office and Procurator Fiscal Service, and as such, is the chief public prosecutor for Scotland with all prosecutions on indictment being conducted by the Crown Office and Procurator Fiscal Service in the Lord Advocate's name on behalf of the Monarch. The Lord Advocate serves as the head of the systems of prosecutions in Scotland and is responsible for the investigation of all sudden, suspicious, accidental and unexplained deaths which occur within Scotland.[2][3]
The officeholder is one of the Great Officers of State of Scotland. The current Lord Advocate is Dorothy Bain KC, who was nominated by First Minister Nicola Sturgeon in June 2021.[4] The Lord Advocate is appointed by the monarch on the recommendation of the incumbent First Minister of Scotland, with the agreement of the Scottish Parliament.[5]
History
The office of Advocate to the monarch is an ancient one. The first recorded Lord Advocate was Sir John Ross of Montgreenan, who is formally mentioned in 1483.[6][7][8] At that time the post-holder was generally referred to as the "King's Advocate" and not until the year 1573 was the term "Lord Advocate" first used.[9]
From 1707 to 1998, the Lord Advocate was the chief legal adviser of the British Government and the Crown on Scottish legal matters, both civil and criminal, until the Scotland Act 1998 devolved most domestic affairs to the Scottish Parliament. His Majesty's 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
Part of government
Until devolution in 1999, all Lords Advocate 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. Since 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.[10]
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.[11]
Post–lord advocate
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.
Crown Agent
The Crown Agent is the principal legal adviser 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; transmit instructions from Crown counsel to procurators fiscal about prosecutions; and in consultation with the Clerk of Justiciary, arrange 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 King's and Lord Treasurer's Remembrancer.
Calls for reform
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.
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".[12]
List of lords advocate
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Pre-Union
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- June 1478 (or earlier) – May 1485[13] or 1494:[14]John Ross of Montgrenan
- Mar 1491 – Feb 1493: David Balfour of Carraldstoun [13]
- Jun 1494 – Sep 1513: James Henryson of Fordell [13]
- 1503–1521?:[15] Richard Lawson of Heirigs (jointly with Henryson? [16])
- Oct 1513 – Nov 1524: James Wishart of Pittarrow[13]
- Dec 1524 – 1527: Adam Otterburn of Auldhame and Reidhall
- 1527–1532: Adam Otterburn and John Foulis of Colinton (jointly)[13] [17]
- 1533–1538: Adam Otterburn and Henry Lauder of St. Germains (jointly)[13][18]
- Sep 1538–1555: Henry Lauder of St. Germains[13]
- Oct 1555-1559: Henry Lauder and John Spens of Condie (jointly)[13][19]
- before Feb 1560-1573: John Spens of Condie and Robert Crichton of Eliok (jointly)[13] [20]
- Oct 1573-1581 Robert Crichton of Eliok and David Borthwick of Lochhill (jointly) [13] [21]
- Jun 1582–1589: David Macgill of Cranston-Riddell, and Nisbet [13] [22]
- Aug 1589 – Sep 1594: David MacGill and John Skene of Curriehill (jointly) [13] [23]
- Oct 1594 - 1596 : David MacGill and William Hart of Livielands (jointly) [13][24]
- Jan 1596 - 1597: William Hart of Livielands and Sir Thomas Hamilton of Drumcairnie (jointly) [13][25]
- 1597-May 1612 Sir Thomas Hamilton of Drumcairnie [13][26]
- Jun 1612 – May 1626: Sir William Oliphant of Newton[13][27]
- May 1626 - Apr 1628: Sir William Oliphant and Sir Thomas Hope of Craighall (jointly) [28][29]
- Apr 1628– Oct 1646: Sir Thomas Hope, 1st Baronet of Craighall [28][30]
- Oct 1646– Mar 1649: Sir Archibald Johnston of Warriston [28]
- Mar, 1649 - Aug 1651: Sir Thomas Nicholson[28]
- vacant (from Aug 1651).
- 1659–1661: Sir Archibald Primrose
- 1661–1664: Sir John Fletcher
- 1664–1677: Sir John Nisbet
- 1677–1687: Sir George Mackenzie of Rosehaugh
- 1687–1688: Sir John Dalrymple
- 1688–1689: Sir George Mackenzie of Rosehaugh
- 1689–1692: John Dalrymple
- 1692–1707: Sir James Stewart
Post-Union
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- 1707–1709: Sir James Stewart
- 1709–1711: Sir David Dalrymple, 1st Baronet
- 1711–1713: Sir James Stewart (second time)
- 1714: Thomas Kennedy of Dunure
- 1714–1720: Sir David Dalrymple, 1st Baronet
- 1720–1725: Robert Dundas the elder
- 1725–1737: Duncan Forbes
- 1737–1742: Charles Erskine
- 1742–1746: Robert Craigie
- 1746–1754: William Grant
- 1754–1760: Robert Dundas the younger
- 1760–1766: Thomas Miller
- 1766–1775: James Montgomery
- 1775–1783: Henry Dundas
- 1783: Henry Erskine
- 1783–1789: Ilay Campbell
- 1789–1801: Robert Dundas
- 1801–1804: Charles Hope
- 1804–1806: Sir James Montgomery, 2nd Baronet
- 1806–1807: Henry Erskine
- 1807–1816: Archibald Colquhoun
- 1816–1819: Alexander Maconochie
- 1819–1830: Sir William Rae, 3rd Baronet
- December 1830 – May 1834: Francis Jeffrey
- May – November 1834: John Murray
- December 1834 – April 1835: Sir William Rae, 3rd Baronet
- April 1835 – April 1839: John Murray
- April 1839 – September 1841: Andrew Rutherfurd
- September 1841 – October 1842: Sir William Rae, 3rd Baronet
- October 1842 – July 1846: Duncan McNeill
- July 1846 – April 1851: Andrew Rutherfurd
- April 1851 – February 1852: James Moncreiff
- February – May 1852: Adam Anderson
- May – December 1852: John Inglis
- December 1852 – March 1858: James Moncreiff
- March – July 1858: John Inglis
- July 1858 – April 1859: Charles Baillie
- April – June 1859: David Mure
- June 1859 – July 1866: James Moncreiff
- July 1866 – February 1867: George Patton
- February 1867 – December 1868: Edward Gordon
- December 1868 – October 1869: James Moncreiff
- October 1869 – February 1874: George Young
- 1874–1876: Edward Gordon
- July 1876 – April 1880: William Watson
- May 1880 – August 1881: John McLaren
- August 1881 – July 1885: John Blair Balfour
- July 1885 – February 1886: John Macdonald
- February – August 1886: John Blair Balfour
- August 1886 – October 1888: John Macdonald
- October 1888 – August 1891: James Robertson
- October 1891 – August 1892: Sir Charles Pearson
- August 1892 – July 1895: John Balfour
- July 1895 – May 1896: Sir Charles Pearson
- May 1896 – October 1903: Andrew Murray
- October 1903 – December 1905: Charles Dickson
- December 1905 – February 1909: Thomas Shaw[31]
- February 1909 – October 1913: Alexander Ure[32]
- October 1913 – December 1916: Robert Munro[33]
- December 1916 – 1920: James Clyde[34]
- 1920–1922: Thomas Brash Morison[35]
- March 1922 – November 1922: Charles David Murray[36]
- November 1922 – February 1924: William Watson[37]
- February 1924 – November 1924: Hugh Pattison MacMillan[38]
- November 1924 – May 1929: William Watson[39]
- May 1929 – June 1929: Alexander Munro MacRobert[40]
- June 1929 – 1933: Craigie Aitchison[41]
- 1933–1935: Wilfrid Normand[42]
- April 1935 – October 1935: Douglas Jamieson[43]
- 1935–1941: Thomas Cooper[44]
- 1941–1945: James Scott Cumberland Reid[45]
- 1945–1947: George Thomson[46]
- 1947–1951: John Wheatley[47]
- 1951–1955: James Clyde[48]
- 1955–1960: William Rankine Milligan[49]
- 1960–1962: William Grant[50]
- 1962–1964: Ian Shearer[51]
- 1964–1967: George Stott
- 1967–1970: Henry Wilson
- 1970–1974: Norman Wylie
- 1974–1979: Ronald Murray
- 1979–1984: James Mackay, Baron Mackay of Clashfern
- 1984–1989: Kenneth Cameron, Baron Cameron of Lochbroom
- 1989–1992: Peter Fraser, Baron Fraser of Carmyllie
- 1992–1995: Alan Rodger, Baron Rodger of Earlsferry
- 1995–1997: Donald Mackay, Baron Mackay of Drumadoon
Post-Devolution
| Lord Advocate | Term | Nominated by | Solicitor General | |
|---|---|---|---|---|
| File:Lord Hardie 2010.jpg | Andrew Hardie | 1997–2000 | Donald Dewar | Colin Boyd |
| File:Colin Boyd.jpg | Colin Boyd | 2000–2006 | Neil Davidson | |
| Elish Angiolini | ||||
| File:Elish Angiolini 2021.jpg | Elish Angiolini | 2006–2011 | Jack McConnell | John Beckett |
| Frank Muholland | ||||
| File:The Rt Hon Frank Mulholland QC.jpg | Frank Muholland | 2011–2016 | Alex Salmond | Lesley Thomson |
| File:Lord Advocate James Wolffe (26789821493).jpg | James Wolffe | 2016–2021 | Nicola Sturgeon | Alison Di Rollo |
| File:Official Portrait of Dorothy Bain QC.png | Dorothy Bain | 2021–present | Ruth Charteris | |
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See also
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- Lord Advocate's Reference
- Law Officers of the Crown
- Attorney General for England and Wales
- Attorney General for Northern Ireland
References
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- ↑ Scotland Act 1998, s 27.
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- ↑ Judiciary in the Court of Session Template:Webarchive (Just over halfway down the list headed "Miscellaneous Submissions").
- ↑ a b c d e f g h i j k l m n o p E.B. Fryde, D.E. Greenway, S. Porter and I. Roy (1986) Handbook of British Chronology, 3rd edition, Royal Historical Society, London, p.201.
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- ↑ 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."
- ↑ George W.T. Omond (1883) Lord Advocates of Scotland, v.1, p.8 suggests Richard Lawson served as jont advocates with James Henryson of Fordell from 1503 to 1507, and James Wishart served jointly with Henryson from 1507 until 1513, but Fryde et al. (1986) Handbook of British Chronology, p.201n4 asserts there is no evidence for that.
- ↑ Omond (1883: p.12) suggests Otterburn was senior and Foulis was subordinate. Fryde et al. (1986:p.201) make no distinction and say merely that they served together.
- ↑ Omond (1883: p.20) suggests Otterburn was senior and Lauder was deputy or substitute.
- ↑ Omond (1883: p.21)
- ↑ Omond (1883: p.26) characterizes Spens as senior and Crichton as junior.
- ↑ Omond (1883: p.37). Junior Borthwick died in January 1581 and senior Crichton seems to have continued on alone until his death in June 1582.
- ↑ Omond (1883: p.42).
- ↑ Omond (1883: p.60).
- ↑ Omond (1883: p.67).
- ↑ Omond (1883: p.69).
- ↑ Omond (1883: p.71). Hamilton succeeded Magill on 31 January 1596, and persuaded King James VI to appoint him sole Advocate. Hart of Livielands will continue to serve jointly until being promoted to Justice Depute to 1597. Thereafter Hamilton is the sole King's Advocate. The 16th century custom of two joint advocates ends now. As a general rule, from Hamilton onwards, there will be only one King's Advocate. The title of "Lord Advocate" begins to be used in place of "King's Advocate" from around this time (Omond, p.74).
- ↑ Omond (1883: p.81, p.87)
- ↑ a b c d Fryde et al. (1986) Handbook of British Chronology, p.202.
- ↑ Omond (1883: p.102)
- ↑ Omond (1883: p.104)
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Sources
The career path of recent Scottish law officers, Scots Law Times, 14 July 2006
External links
- Lord Advocate on the Scottish Government website
- Lord Advocate on the Crown Office and Procurator Fiscal Service website
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