This section makes provision about the participation of the Lord Advocate or the Solicitor General for Scotland in the proceedings of the Scottish Parliament. In particular it makes provision about a Law Officer’s participation if he is not a member of the Scottish Parliament (MSP) and his entitlement to decline to answer questions about the operation of the criminal prosecution system in particular cases under certain circumstances.
This section is part of the set dealing with the proceedings of the Scottish Parliament.
Section 48 makes provision about the appointment of the Lord Advocate and the Solicitor General for Scotland but does not require them to be members of the Scottish Parliament. Section 27(1) makes provision about their participation in proceedings of the Parliament if they are not MSPs.
Section 27 (3) is one of a number of provisions which safeguard the independence of the Lord Advocate and the Solicitor General in connection with the exercise by them of their prosecution functions. Section 29(2)(e) provides that it would be outside the competence of the Parliament to legislate to remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. Section 48(5) provides that any decision taken by the Lord Advocate as head of those systems shall continue to be taken by him independently of any other person.
Section 27 (3) is intended to protect the Scottish Law Officers from inappropriate questioning in relation to particular criminal cases. This protection also extends to the procurator fiscal by section 23(10). However, subject to that, the Scottish Law Officers will be accountable to the Scottish Parliament for their actings and decisions in relation to the operation of the criminal justice system, including those relating to individual cases: this provision merely protects them from divulging details of particular cases where it would be inappropriate for them to do so.
There are other provisions which also prevent the Parliament from raising matters in relation to particular cases which may either constitute a contempt of court or breach the sub judice rule. Its proceedings are subject to the Contempt of Court Act 1981 (see section 42) and paragraph 1 of Schedule 3 requires standing orders to include provision to prevent conduct which would constitute a criminal offence or a contempt of court and to include a sub judice rule. In addition, section 23(9), which deals with the Parliament’s power to call for witnesses and documents, is also relevant in that it provides that a person is not obliged to answer a question or to produce a document if he would be entitled to refuse to do so in a court in Scotland.
| Stage | Date | Column |
|---|---|---|
| LC | 21-Jul-98 | 782 |
| LR | 28-Oct-98 | 1944 |
Subsection (1) provides that, if either the Lord Advocate or the Solicitor General is not a member of the Scottish Parliament, he may participate in its proceedings to the extent specified by the Parliament’s standing orders but may not vote, and that otherwise standing orders may apply to him in the same way as to an MSP. “Proceedings” includes proceedings of committees and sub-committees - see section 126(1). The Standing Orders of the Parliament permit the Scottish Law Officers to participate as fully in the proceedings of the Parliament as any other member but they may not vote or be appointed a member of the SPCB or the Parliamentary Bureau.
Subsection (2) qualifies subsection (1) by making it clear that it is without prejudice to section 39 which requires the Parliament to make provision about members’ interests. Section 39(8)(b) provides that for this purpose the Law Officers are to be subject to the same rules as MSPs even if they are not members of the Parliament.
Subsection (3) provides that the Lord Advocate or the Solicitor General for Scotland may decline to answer questions or to provide documents relating to the operation of the criminal prosecution system in relation to about particular criminal cases if he considers that doing so might prejudice the proceedings in that case or would otherwise be contrary to the public interest. There is a similar provision in relation to a procurator fiscal in section 23(10).