Scottish Government publishes lord advocate dual role report

The dual role of the lord advocate as both the head of the prosecution service and legal adviser to Scottish ministers is “appropriate”, the Scottish Government has said.

It comes as it published a report on the roles and functions of Scotland’s law officers, produced by former Scottish Law Commission chief executive Malcolm McMillan.

The report is intended to inform the preparation of a future consultation by the government on the law officers and does not include any recommendation on the best approach.

But the government’s position is that existing arrangements should continue, though it acknowledges that it would be for the next administration to consider whether any changes are required.

Justice secretary Angela Constance, in response to a written parliamentary question on the matter, said: “The report clearly sets out how and why the current system works and its considerable strengths.

“Careful consideration would be required if there were to be any changes made to the ways in which the law officers’ various functions were allocated.”

The SNP had pledged to consult on whether the dual function of the law officers should be separated as part of its 2021 manifesto, but no such consultation has been forthcoming in this session of parliament.

That commitment came after considerable concern about a conflict of interest towards the end of the last parliament, as MSPs investigated the government’s handling of harassment complaints against former first minister Alex Salmond.

The Committee on the Scottish Government Handling of Harassment Complaints highlighted “long-standing tension” in the dual role after the then lord advocate handed over a report by the government to the Crown Agent, though acknowledged that the time this was done “with integrity and professionalism”.

The issue has once again been in the limelight after the current lord advocate, Dorothy Bain, passed information relating to charges against former SNP chief executive Peter Murrell to First Minister John Swinney.

Bain sent a memo to the FM in March 2025, advising Murrell had been charged with embezzling around £460,000 from the SNP between 2010 and 2023. This was ten months before this information was made public.

It has reignited calls from some quarters for the dual roles to be separated.

Conservative leader Kemi Badenoch said her party would seek to split the role if it were to enter power after the next general election.

It would not be within the competence of the Scottish Parliament to remove the lord advocate as the head of the systems of prosecution and the investigation of deaths, but the McMillan report says there “may be scope” for smaller administrative changes without legislation.

The report also highlights there are “arrangements and conventions in place” to address perceived or real conflicts of interest.