| Post: | His Majesty's Lord Advocate |
| Native Name: | Gaelic; Scottish Gaelic: Morair Tagraidh |
| Insignia: | Crest of the Kingdom of Scotland.svg |
| Insigniasize: | 110px |
| Incumbent: | Dorothy Bain KC |
| Incumbentsince: | 22 June 2021 |
| Department: | Crown Office and Procurator Fiscal Service |
| Member Of: | Scottish Cabinet Privy Council Cabinet Sub-Committee on Legislation Scottish Government Legal Directorate |
| Reports To: | First Minister |
| Deputy: | Solicitor General for Scotland |
| Salary: | £134,092 per annum [1] |
His Majesty's Advocate, known as the Lord Advocate (Gaelic; Scottish Gaelic: Morair Tagraidh, Scots: Laird Advocat), 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.[2]
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.[3] [4]
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.[5] 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.[6]
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.[7] [8] [9] 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.[10]
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.
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.[11]
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.[12]
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.
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.
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.
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".[13]
| Lord Advocate | Term | Nominated by | Solicitor General | |
|---|---|---|---|---|
| Andrew Hardie | 1997–2000 | Donald Dewar | Colin Boyd | |
| Colin Boyd | 2000–2006 | Neil Davidson | ||
| Elish Angiolini | ||||
| Elish Angiolini | 2006–2011 | Jack McConnell | John Beckett | |
| Frank Muholland | ||||
| Frank Muholland | 2011–2016 | Alex Salmond | Lesley Thomson | |
| James Wolffe | 2016–2021 | Nicola Sturgeon | Alison Di Rollo | |
| Dorothy Bain | 2021–present | |||
The career path of recent Scottish law officers, Scots Law Times, 14 July 2006