Law Society of Scotland informs MPs on Lord Advocate inquiry

In a recent appearance before the cross-party Scottish Affairs Committee, the Law Society of Scotland presented its stance on the Lord Advocate's dual role. Michael Clancy, the Society’s Director of Law Reform, expressed concerns regarding any reforms to the roles of the Lord Advocate and Solicitor General, stating that they must be “evidence-led” to prevent unintended consequences.

Clancy’s oral evidence, delivered on 4 November, focused on the importance of thorough consultation. The Law Society has yet to take a definitive position on separating the Lord Advocate’s roles in government legal advice and public prosecution. This uncertainty remains while Lord Boyd of Duncansby conducts his review, as announced by the Scottish Government. However, the Society advised the Scottish Affairs Committee that its inquiry would provide valuable information for Lord Boyd's review, enhancing the understanding of the implications of any proposed changes.

During his testimony, Mr Clancy remarked that the historic office of the Lord Advocate “is an important one and there are considerable legal principles which need to be thought about as we go forward”. He urged the Committee to approach the matter “examined with care and examined consciously” to avoid arriving at conclusions too hastily. To ensure that any conclusions drawn are sound, he emphasised the necessity of collecting “proper evidence about what academic thinking is, what professional organisations think, what the general public thinks”. This careful examination of evidence aims to facilitate the creation of ‘good law’, defined as “cohesive, coherent, accessible and effective”, thereby mitigating any potential risky outcomes.

Furthermore, Clancy highlighted that both government ministers and legislators at Westminster and Holyrood must play a “crucial role” in scrutinising any legislative proposals that emerge. This supervision is necessary to catch anything that might otherwise evade the processes of consultation, drafting, or introduction.

In addition, Mr Clancy urged the Committee to deliberate on whether the procedure for recusing the Lord Advocate from certain prosecutions could be made more robust by enshrining it in statute with “clear definitions”. This would include specifying what constitutes a ‘politician’ for the purposes of recusal, which could enhance the integrity of the legal process.

The Society’s written evidence, released the previous week, draws attention to the intricate nature of the Lord Advocate's functions, noting that the term appears about 900 times in legislation, indicating the complexity surrounding any reform. They have previously expressed support for Lord Boyd’s review, which follows the Society’s earlier calls for a public consultation from the Scottish Government regarding potential changes, in line with its 2021 manifesto commitment.

The Law Society of Scotland, established in 1949, serves over 14,000 solicitors in Scotland. It strives to promote legal excellence while upholding standards within the profession to maintain public confidence. The Society is dedicated to acting in the public interest, focusing on fostering a robust legal profession and the rule of law while engaging actively with governments and stakeholders to cultivate a more equitable society.