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politics and government of
Her Majesty's Advocate, known as the Lord Advocate (Scottish Gaelic: Morair Tagraidh, Scots: Laird Advocat), is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament. He or she is the chief public prosecutor for Scotland and all prosecutions on indictment are conducted by the Crown Office and Procurator Fiscal Service, nominally in the Lord Advocate's name.
From 1707 to 1998, the Lord Advocate was the chief legal adviser of the British Government and the Crown for Scottish legal matters, both civil and criminal, until the Scotland Act 1998 devolved most domestic affairs to the Scottish Parliament. Her 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
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, the Lord Advocate has been an automatically ex officio member of the Scottish Government.
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 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. Post-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.
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 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.
The Crown Agent is the principal legal advisor 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; 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 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 Queen's and Lord Treasurer's Remembrancer
Calls for reform
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".
List of Lord Advocates
- 1478 or earlier–1494: John Ross of Montgrenan
- 1494–1503: James Henryson of Fordell
- 1503–1521?: Richard Lawson of Heirigs
- 1521–1525: James Wishart of Pittarrow
- 1525–1527: Adam Otterburn of Reidhall
- 1527–1533: John Foulis and Adam Otterburn of Reidhall
- 1533–1538: Adam Otterburn and Henry Lauder
- 1538–1561: Henry Lauder
- Henry Balnaves, to Mary, Queen of Scots
- Thomas Cumin, Lord of Session
- 1561: John Spens of Condie, Lord Condie
- Robert Crichton
- 1573–1582: David Borthwick of Lochhill
- 1582–1589: David Macgill of Cranston-Riddell, and Nisbet
- 1589–1594: John Skene
- 1594: William Hart of Livelands
- 1594–1595: Andrew Logie
- 1595: Sir Thomas Hamilton and David Macgill
- 1596–1612: Sir Thomas Hamilton
- 1612–1626: Sir William Oliphant
- 1626–1645: Sir Thomas Hope, Bt
- 1646–?: Sir Archibald Johnston
- Sir Thomas Nicholson
- 1659–1661: Sir Archibald Primrose
- 1661–1664: Sir John Fletcher
- 1664–1677: Sir John Nisbet
- 1677–1687: Sir George Mackenzie of Rosehaugh
- 1687–1688: John Dalrymple
- 1688–1689: Sir George Mackenzie
- 1689–1692: John Dalrymple
- 1692–1707: Sir James Stewart
- 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: Hon. Henry Erskine
- 1783–1789: Ilay Campbell
- 1789–1801: Robert Dundas
- 1801–1804: Charles Hope
- 1804–1806: Sir James Montgomery, Bt
- 1806–1807: Hon. Henry Erskine
- 1807–1816: Archibald Colquhoun
- 1816–1819: Alexander Maconochie
- 1819–1830: Sir William Rae
- December 1830 – May 1834: Francis Jeffrey
- May – November 1834: John Murray
- December 1834 – April 1835: Sir William Rae
- April 1835 – April 1839: John Murray
- April 1839 – September 1841: Andrew Rutherfurd
- September 1841 – October 1842: Sir William Rae
- 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 Strathearn Gordon
- December 1868 – October 1869: James Moncreiff
- October 1869 – February 1874: George Young
- 1874–1876: Edward Strathearn 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 Patrick Bannerman Robertson
- October 1891 – August 1892: Sir Charles John Pearson
- August 1892 – July 1895: John Blair Balfour
- July 1895 – May 1896: Sir Charles John Pearson
- May 1896 – October 1903: Andrew Graham Murray
- October 1903 – December 1905: Charles Scott Dickson
- December 1905 – February 1909: Thomas Shaw
- February 1909 – October 1913: Alexander Ure
- October 1913 – December 1916: Robert Munro
- December 1916 – 1920: James Avon Clyde
- 1920–1922: Thomas Brash Morison
- March 1922 – November 1922: Charles David Murray
- November 1922 – February 1924: William Watson
- February 1924 – November 1924: Hugh Pattison MacMillan
- November 1924 – May 1929: William Watson
- May 1929 – June 1929: Alexander Munro MacRobert
- June 1929 – 1933: Craigie Mason Aitchison
- 1933–1935: Wilfrid Guild Normand
- April 1935 – October 1935: Douglas Jamieson
- 1935–1941: Thomas Mackay Cooper
- 1941–1945: James Scott Cumberland Reid
- 1945–1947: George Reid Thomson
- 1947–1951: John Thomas Wheatley
- 1951–1955: James Latham McDiarmid Clyde
- 1955–1960: William Rankine Milligan
- 1960–1962: William Grant
- 1962–1964: Ian Hamilton Shearer
- 1964–1967: George Gordon Stott
- 1967–1970: Henry Stephen Wilson
- 1970–1974: Norman Russell Wylie
- 1974–1979: Ronald King Murray
- 1979–1984: Lord Mackay of Clashfern
- 1984–1989: Lord Cameron of Lochbroom
- 1989–1992: Lord Fraser of Carmyllie
- 1992–1995: Lord Rodger of Earlsferry
- 1995–1997: Lord Mackay of Drumadoon
- 1997–2000: Lord Hardie
- 2000–2006: Lord Boyd of Duncansby
- 2006–2011: Elish Angiolini
- 2011–2016: Frank Mulholland
- 2016–present: James Wolffe
- Lord Advocate's Reference
- Law Officers of the Crown
- Attorney General for England and Wales
- Attorney General for Northern Ireland
- The constitutional role of the Attorney General: fifth report of session 2006-07, UK Parliament Constitutional Affairs Committee, Ev 96
- Scotland Act 1998, s 44.
- "Lord Advocate excluded from new Cabinet". The Scotsman. 23 May 2007.
- Scotland Act 1998, s 27.
- Judiciary in the Court of Session (Just over half way down the list headed "Miscellaneous Submissions").
- "Historical Background to the development of the office of Lord Advocate". Crown Office and Procurator Fiscal Service. Retrieved 2009-10-13.
- 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."
- The London Gazette: . 15 December 1905. Retrieved 11 January 2016.
- The Edinburgh Gazette: . 19 February 1909. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 4 November 1913. Retrieved 11 January 2016.
- The Edinburgh Gazette: . 15 December 1916. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 2 April 1920. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 10 March 1922. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 3 November 1922. Retrieved 11 January 2016.
- The Edinburgh Gazette: . 12 February 1924. Retrieved 11 January 2016.
- The Edinburgh Gazette: . 18 November 1924. Retrieved 10 January 2016.
- The London Gazette: . 7 May 1929. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 21 June 1929. Retrieved 7 January 2016.
- The Edinburgh Gazette: . 3 October 1933. Retrieved 8 January 2016.
- The London Gazette: . 2 April 1935. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 1 November 1935. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 13 June 1941. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 21 August 1945. Retrieved 10 January 2016.
- The Edinburgh Gazette: . 14 October 1947. Retrieved 10 January 2016.
- The Edinburgh Gazette: . 9 November 1951. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 11 January 1955. Retrieved 8 January 2016.
- The Edinburgh Gazette: . 12 April 1960. Retrieved 12 January 2016.
- The Edinburgh Gazette: . 19 October 1962. Retrieved 12 January 2016.
- "First minister Alex Salmond unveils enlarged cabinet". BBC News. 19 May 2011. Retrieved 8 January 2016.
- "Holyrood approves James Wolffe and Alison Di Rollo as top legal officers". The Scotsman. 1 June 2016. Retrieved 5 June 2016.
The career path of recent Scottish law officers, Scots Law Times, 14 July 2006
- Lord Advocate on Scottish Government website