FACTSHEET 8
The Departments of the Lord Advocate
Produced by The Scottish Office Information Directorate in October 1996.
This information will be fully updated.
OFFICE OF LORD ADVOCATE

The Lord Advocate is the principal Law Officer of the Crown in Scotland. Besides his role in the system of public prosecution, he is the Government’s constitutional and legal adviser on Scottish affairs.

The early history of the office of Lord Advocate is obscure, but it is plain that it grew out of the necessity for the King to have an advocate to represent him in proceedings both criminal and civil. Hence the original title was ‘King’s Advocate’ of ‘King’s Majesty’s Advocate’. This ancient usage is continued in modern indictments which run in the name of the Lord Advocate as ‘Her Majesty’s Advocate’.

The first person to act in this role was John Ross of Montgrenan. In 1476 the King appointed him to be his commissioner for the hearing of a case in Stirling. In 1477 he was appointed by the King to be his procurator for the hearing of a case in Edinburgh. Then on 8th June 1478 he appeared before a court in Edinburgh as advocate for the King. The title of King’s Advocate dates from that occasion. But is was probably not until 1494 that there was a single permanent officer of state called the King’s Advocate, and it was not until 1587 that his full role as public prosecutor developed.

The Lord Advocate is one of the great officers of state in Scotland. In that capacity e is one of the persons charged with maintaining and protecting the Scottish regalia (the Honours of Scotland). Before the Union he had a seat ex officio in Parliament. As Lord Advocate he is a member of the Government and goes in and out of office with the Government. He is a United Kingdom Minister although his special responsibilities relate to Scotland.

After the abandonment of the office of Secretary of State for Scotland in 1746 (it was in any event a much lesser office than comparisons with the present would suggest) the Lord Advocates gradually came to assume the powers of that office along with the Home Secretary. Henry Dundas, first Viscount Melville (Lord Advocate 1775-1783), in consequence of his political stature, firmly established the primacy of the office and used it to draw Scotland more fully into the United Kingdom. Not till 1885 was the Office of Secretary of State for Scotland revived.

CROWN OFFICE

Today, discharging his functions through the Crown Office, the Lord Advocate is responsible for the investigation of crime in Scotland and for prosecutions in the High Court, Sheriff Courts and District Courts. With a few exceptions, crimes and offences in Scotland may be prosecuted only by the Lord Advocate or his Deputes (Crown Counsel) or by Procurators Fiscal and their Deputes, organised under the Crown Agent through the Crown Office, who prosecute in every Sheriff and District Court in Scotland.

In contrast to the position in England, there is no general right of private prosecution in Scotland; with a few minor exceptions, crimes and offences may be prosecuted only by the Lord Advocate or his Deputes or by Procurators Fiscal and their Deputes.

Procurators Fiscal are also responsible for the investigation of all sudden and suspicious deaths, there being no office of coroner in Scotland. Fiscals also conduct fatal accident enquiries in the Sheriff Courts on behalf of the Lord Advocate.

There are 13 Advocates Depute in Scotland, and 43 Procurators Fiscal, all of whom are legally qualified, and an administrative staff of 727. In addition, the Lord Advocate is supported in Crown Office by a legal staff of 22 including the Crown Agent, and an administrative staff of 101.

In these functions, the Lord Advocate exercises an impartial and quasi-judicial discretion for which he is answerable to no one except Parliament. In this way, independence in the administration of justice is secured and the liberty of the subject safeguarded.

LORD ADVOCATE’S DEPARTMENT

The Lord Advocate has many Law Officer functions as a constitutional and legal adviser to the Government, and he is responsible for the drafting of Scottish legislation. These functions are discharged mainly through the Lord Advocate’s Department in London, whose permanent head is the Legal Secretary to the Lord Advocate and First Parliamentary Counsel for Scotland. The members of the Department are the parliamentary counsel for Scotland – legal specialists who draft both Scottish Bills and the Scottish provisions in Bills applying also to other parts of the United Kingdom.

The Department also supplies counsel for the Scottish Law Commission in Edinburgh. The Department also assists the Lord Advocate in the carrying out of his functions as a constitutional and legal adviser to the Government, and provides advice on questions of Scots law to various Government departments. There are presently seven legally qualified members of the department and eight administrative staff.

SCOTTISH COURTS ADMINSTRATION

The Lord Advocate has Ministerial responsibility for the general oversight of certain branches of Scots law dealing with courts and tribunals and the administration of justice. These responsibilities, which are largely concerned with civil matters, are dealt with by the Scottish Courts Administration (SCA). These matters include: the jurisdiction and procedure of the Scottish civil courts; the law relating to the enforcement of the judgments of Scottish courts in civil matters (the law of diligence); the law of evidence; the law relating to arbitration; and private international law (conflicts of law) and related matters.

SCA also handles, on behalf of the Lord Advocate, his responsibilities in respect of the Scottish Law Commission whose general task is to keep under review the law of Scotland and to recommend reforms. In addition, SCA carries out, on the Lord Advocate’s behalf, certain functions in connection with the Council on Tribunals and its Scottish Committee, procedure in statutory inquiries and before certain tribunals in Scotland and the laying before Parliament of proposals for the consolidation of the law in Scotland.

SCA also carries out, on behalf of the Secretary of State for Scotland, certain functions relating to the organisation and administration of the Scottish Courts (other than District Courts) and tribunals, which are the Ministerial responsibility of the Secretary of State for Scotland.

SCOTTISH LAW OFFICERS

The Lord Advocate and the Solicitor-General for Scotland are the ultimate source of legal advice to the Government on all Scottish matters, and, along with the English Law Officers (Attorney-General and Solicitor-General), of advice on matters of constitutional and international law (such as the constitutional aspects of European Community obligations) and other legal matters affecting the United Kingdom as a whole. They are Ministers in their own right, independent of the Secretary of State.

ORGANISATION OF THE PROCURATOR FISCAL SERVICE