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Advocate General for Scotland
Advocate General for Scotland
Advocate General for Scotland
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Not to be confused with Lord Advocate.

United Kingdom
Advocate General
for Scotland
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Monarch in Scotland

Flag of Scotland
since 29 August 2024
Office of the Advocate General for Scotland
StyleThe Right Honourable
Reports toPrime Minister
AppointerThe King
(on the advice of the Prime Minister)
Term lengthAt His Majesty's pleasure
Formation1999
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His Majesty's Advocate General for Scotland is one of the Law Officers of the Crown, whose duty it is to advise the Crown and His Majesty's Government on Scots law. The Office of the Advocate General for Scotland is a ministerial department of the Government of the United Kingdom.[1] The position is currently occupied by Baroness Smith of Cluny KC.[2]

History

[edit]

The office of Advocate General for Scotland was created in 1999 by the Scotland Act 1998[3] to be the chief legal adviser to the United Kingdom Government on Scots law. This function had previously been carried out by the Lord Advocate and Solicitor General for Scotland, who were transferred to the Scottish Government on the establishment of the Scottish Parliament.[4] The office of the Advocate General for Scotland should not be confused with that of "His Majesty's Advocate", which is the term used for the Lord Advocate in Scottish criminal proceedings.

List of Advocates General for Scotland

[edit]
Advocate General for Scotland
Portrait Name
(birth–death) 		Term of office Party Ministry Ref.
The Right Honourable
Lynda Clark
Baroness Clark of Calton[a]
PC QC
(born 1949) 		19 May
1999 		18 January
2006 		Labour Blair I [5]
Blair II
The Right Honourable
Neil Davidson
Baron Davidson of Glen Clova
QC
(born 1950) 		21 March
2006 		11 May
2010 		[6]
Blair III
 
Brown
 
The Right Honourable
Jim Wallace
Baron Wallace of Tankerness
PC QC
(born 1954) 		14 May
2010 		8 May
2015 		Liberal
Democrat 		Cameron–Clegg
(Con.–LD) 		[7]
The Right Honourable
Richard Keen
Baron Keen of Elie
PC QC
(born 1954) 		29 May
2015 		16 September
2020 		Conservative Cameron II [8]
May I
May II
Johnson I
Johnson II
The Right Honourable
Keith Stewart
Baron Stewart of Dirleton
KC
(born 1965) 		15 October
2020 		5 July
2024 		[9][10][11]
Truss
Sunak
The Right Honourable
Catherine Smith
Baroness Smith of Cluny
KC
(born 1973) 		29 August
2024 		present Labour Starmer [12]

The first holder of the office was Lynda Clark, then Member of Parliament for Edinburgh Pentlands and from 2005 a member of the House of Lords as Baroness Clark of Calton. On 18 January 2006, Baroness Clark resigned to take up office as a Senator of the College of Justice, a judge of the Supreme Courts of Scotland.

The office was then vacant until 15 March of that year when, under section 87 of the Scotland Act 1998, its functions were temporarily conferred on the Secretary of State for Scotland, Alistair Darling MP, himself a Scottish advocate.[citation needed]

There had been substantial criticism from the judiciary and others of the length of time the office had been left vacant.[citation needed] On 21 March, however, it was announced Neil Davidson, former Solicitor General for Scotland, had been appointed Advocate General. He was created a life peer, as Baron Davidson of Glen Clova, on 22 March 2006.

On 14 May 2010, Jim Wallace, Baron Wallace of Tankerness, a former Deputy First Minister of Scotland, was appointed by the coalition government.

Richard Keen was appointed Advocate General in David Cameron's majority government on 29 May 2015, and has retained the post through two subsequent prime ministers to 2020.[13] He was created a life peer, as Baron Keen of Elie, on 8 June 2015. He resigned on 16 September 2020 citing concerns arising from the UK Internal Market Bill, noting in his letter of resignation to Boris Johnson that he found it "increasingly difficult to reconcile what I consider to be my obligations as a Law Officer with your policy intentions".[14]

Keith Stewart was appointed to succeed Keen on 15 October 2020.[15] Catherine Smith was appointed to the office and a life peerage by the Starmer government on 29 August 2024.[12]

Organisation

[edit]

The office has a staff of around 40.

All staff are on secondment or loan from other government organisations, mainly the Scottish Government and the Ministry of Justice.[16]

Offices of the Advocate General

  • Advocate General's Private Office, based in London
  • Legal Secretariat to the Advocate General (LSAG), based in London
    • Legal Secretary to the Advocate General
  • Office of the Advocate General (OAG), based in Edinburgh

See also

[edit]

Notes

[edit]

References

[edit]
[edit]
Revisions and contributorsEdit on WikipediaRead on Wikipedia

Advocate General for Scotland

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from Grokipedia
The Advocate General for Scotland is a ministerial office within the United Kingdom Government, serving as one of the Law Officers of the Crown and the principal adviser to the Government on Scots law, with particular responsibility for issues arising from Scottish devolution. Established by section 87 of the Scotland Act 1998 to support the implementation of devolved governance, the role involves assessing the legislative competence of Bills passed by the Scottish Parliament, referring doubtful cases to the Supreme Court under section 33 of the same Act, and representing the UK Government in Scottish courts on reserved matters and devolution disputes. The office holder, appointed by the Prime Minister and typically a member of the House of Lords, oversees the Office of the Advocate General, which provides Scots law expertise to UK departments and ensures policy and legislation affecting Scotland align with the devolution settlement. The current incumbent is Baroness Smith of Cluny KC (Catherine Smith), who was appointed in August 2024 following a distinguished career as an advocate specializing in public law and human rights. Notable functions include intervening in proceedings under Schedule 6 of the Scotland Act to safeguard the boundaries between reserved and devolved powers, a role that has featured in constitutional challenges such as referrals on the legislative validity of Scottish measures.

Constitutional Role and Functions

Advisory Responsibilities

The Advocate General for Scotland holds the primary responsibility of furnishing the UK Government with expert legal counsel on , with a particular emphasis on the devolution framework under the Scotland Act 1998. This advisory function entails analyzing the compatibility of proposed UK legislation with devolved competences, alerting ministers to potential conflicts where bills might affect matters within the Scottish Parliament's legislative purview without securing a legislative consent motion. Such advice prioritizes a literal and purposive construction of the Scotland Act's schedules delineating reserved and devolved powers, aiming to uphold the statutory division of authority and avert unintended erosions of UK-wide legislative supremacy in reserved domains like defense, , and macroeconomic regulation. In advising on UK bills, the Advocate General reviews departmental policy proposals and draft legislation for Scots law implications, including assessments of whether provisions indirectly impinge on devolved areas such as health or education through fiscal or regulatory mechanisms. This process, conducted through the Office of the Advocate General's legal secretariat, informs cabinet-level decisions and ensures compliance with section 28(7) of the , which voids UK acts attempting to legislate on devolved matters absent consent. The counsel remains focused on juridical analysis—deriving from the Act's text, parliamentary intent at enactment, and —rather than policy preferences, thereby safeguarding against competence creep that could destabilize the asymmetric model. Regarding Scottish Parliament legislation, the advises the Government on prospective bills' adherence to boundaries, evaluating risks of enactment before parliamentary stages conclude. This includes preemptive identification of provisions encroaching on areas like the Crown's reserved interests or equal opportunities if framed to override UK-wide standards, drawing on section 29 of the Act to gauge whether bills "relate to" reserved matters through their effects. Such guidance underpins strategic responses, emphasizing causal linkages between bill content and constitutional limits to preserve the Act's equilibrium, as evidenced in internal deliberations preceding high-profile interventions on fiscal or sovereignty-related proposals.

Litigation and Representation Duties

The Advocate General for Scotland possesses the authority to intervene in any Scottish court proceedings where issues—defined as questions arising from the 's division of legislative competences—are raised, enabling representation of Government interests to safeguard the devolution settlement. This intervention power, outlined in Schedule 6 of the , allows the office to participate as a party or submit arguments, ensuring that judicial interpretations align with the Act's framework for reserved and devolved powers. Such actions mechanistically enforce causal consistency across jurisdictions by challenging interpretations that risk eroding reserved matters like or reserved to Westminster. In representing , the Advocate General initiates or defends litigation against actions exceeding competence, including unauthorized expenditures or legislative maneuvers encroaching on areas, as empowered under sections 35 and 99 of the for bill incompatibility and void acts. This defensive function counters potential overreach, such as attempts to hold referendums on constitutional changes without consent, thereby maintaining the Act's hierarchical legal order where law prevails in conflicts. The role extends to referrals under section 33, permitting pre-enactment scrutiny of Scottish bills for competence, which has been invoked in instances of proposed legislation testing boundaries. Interventions occur selectively when UK interests are engaged, with historical data indicating responsiveness to notified devolution minutes; for example, in 2008-09, the office intervened in 13 of 326 such notifications. Post-2014 independence referendum, activity has aligned with escalated devolution disputes, reflecting causal pressures from Scottish assertions of expanded authority that necessitate judicial clarification to preserve the Act's equilibrium. This pattern underscores the office's role in litigation as a bulwark against asymmetric devolution drift, prioritizing empirical adherence to statutory limits over unilateral expansions.

Interaction with Devolution Framework

The Advocate General for Scotland interfaces with the framework by providing the Government with independent advice on the demarcation between —such as defense, , and under —and devolved competencies like and , as defined in Schedules 4 and 5 of the Scotland Act 1998. This role emerged to address the reconfiguration of legal advisory functions post-1998, distinguishing it from the , whose responsibilities shifted to primarily serving the in advisory and prosecutorial capacities within Scotland, thereby resolving prior dual-loyalty tensions where the Lord Advocate historically advised both UK and Scottish entities on . The separation ensures the UK maintains oversight unencumbered by devolved executive priorities, facilitating objective evaluations of potential overreach in Scottish or executive actions. Dispute resolution mechanisms under the Scotland Act empower the to intervene in devolution issues, including referring questions of legislative competence to the UK Supreme Court via paragraph 34 of Schedule 6, as demonstrated in assessments of bills risking incompatibility with reserved matters. Regarding the Sewel Convention—articulated in (8) of the , stipulating that the UK Parliament will not normally alter devolved laws without Scottish consent—the advises on its observance, though its status as a political convention precludes judicial enforcement, allowing the UK to prioritize constitutional integrity over unilateral devolved assertions. This advisory input has informed UK responses to contested legislative consents, underscoring the convention's role in fostering cooperation without binding veto-equivalent constraints. The Advocate General also counsels on section 35 of the Scotland Act 1998, enabling the Secretary of State to withhold consent for Scottish bills if they would materially damage reserved powers or UK-wide obligations, a power exercised on 17 January 2023 to block the Gender Recognition Reform (Scotland) Bill for its prospective incompatibility with the Equality Act 2010's single-sex exceptions applicable across the UK. Such interventions calibrate devolved autonomy against risks of fragmented policy coherence, empirically preserving union stability by preempting escalatory encroachments—evident in the bill's potential to undermine reserved equality frameworks—while respecting statutory devolution limits without extraneous political deference.

Appointment and Qualifications

Selection Process and Tenure

The Advocate General for Scotland is appointed by the monarch on the advice of the Prime Minister, as a ministerial position within the UK Government. This process reflects the political nature of the role, with appointees typically selected from senior Scottish advocates holding King's Counsel (KC) status who demonstrate alignment with the governing administration's legal and policy priorities. Empirical patterns indicate a preference for experienced litigators capable of representing UK interests in devolution-related matters, though no statutory vetting beyond executive recommendation is required. The position carries no fixed term of office, serving instead at the pleasure of and effectively coterminous with the appointing 's tenure. Changes in administration often prompt immediate replacement, as evidenced by the transition following the 4 July 2024 , which led to the appointment of Catherine Smith KC on 29 August 2024 to succeed the prior Conservative-aligned holder. Her predecessor’s tenure concluded with the 's defeat, illustrating the role's sensitivity to electoral outcomes and the absence of continuity across partisan divides. To enable parliamentary scrutiny and participation, the Advocate General is customarily granted a life peerage upon appointment, facilitating membership in the . Smith, for example, was created Baroness Smith of Cluny and sworn in as on 27 September 2024, with her peerage formalized in October 2024. This elevation underscores the office's integration into the UK's unwritten constitutional framework, where legal expertise intersects with political accountability.

Required Expertise and Political Alignment

The role demands profound expertise in , distinct from the orientation of Officers such as the Attorney General, who typically draw from or solicitor backgrounds focused on . In practice, appointees are invariably senior practitioners qualified as advocates, often (KC) with membership in the Faculty of Advocates, ensuring nuanced command of Scotland's hybrid civil and traditions for advising on issues and litigation. While no statutory provision mandates specific political credentials, selections favor those with a pragmatic commitment to the United Kingdom's , reflecting the office's mandate to safeguard against expansive interpretations of devolved competence. This is evident in interventions by figures like Lord Keen of Elie, who, as from 2015 to 2020, robustly defended UK in devolution disputes, such as challenging Scottish legislative inconsistencies with reserved matters in proceedings. Such alignment underscores an implicit unionist disposition, prioritizing constitutional boundaries over maximalist , without statutory endorsement but consistent across appointments by successive UK governments. Appointees maintain operational independence in , akin to other Law Officers, yet remain accountable to the UK Attorney General, fostering a balance where fidelity to statutory limits—rooted in the —prevails over partisan expediency. This framework has ensured consistent advocacy for the Act's delineations, countering pressures for interpretive elasticity that could erode reserved domains.

Historical Evolution

Origins in Pre-Devolution Scots Law Advice

Prior to , the Government depended on the , as Scotland's principal Law Officer, to furnish expert counsel on the application and compatibility of within UK-wide legislation and administration. The office of originated no later than 1483, predating the parliamentary union, and post-1707 assumed the mantle of advising on Scots legal matters to reconcile Scotland's preserved distinct —safeguarded by Article XIX of the , which upheld existing private laws—with the integrated British state. This advisory function endured through the 19th and early 20th centuries, with the Lord Advocate serving as a UK Cabinet minister when required, ensuring parliamentary bills affecting Scotland adhered to Scots legal principles; for instance, Lord Advocates routinely vetted provisions in acts extending English precedents northward, such as those reforming judicial procedures or property rights, to avert inadvertent breaches of Scottish norms. The Lord Advocate's dual capacity as government advisor and head of the Crown's prosecution apparatus in Scotland thus maintained continuity in legal oversight, compensating for the absence of a standalone UK role dedicated to Scots law. Emerging tensions in this arrangement surfaced amid resurgent Scottish autonomy aspirations, particularly during the 1970s Kilbrandon Commission deliberations and the abortive Scotland Act 1978, where the 's alignment with UK policy risked compromising objective guidance on 's legal boundaries. By the 1990s, as Labour's manifesto crystallized, empirical assessments underscored the peril of conflicted counsel: the , embedded in UK executive structures, might prioritize Westminster imperatives over nuanced Scots interpretations in reserved-devolved intersections, prompting calls for structural disaggregation to preserve advisory integrity absent 's full implementation.

Creation via Scotland Act 1998

The office of Advocate General for Scotland was established by section 87 of the Scotland Act 1998, which received royal assent on 31 July 1998 and provided the statutory framework for devolution following the 1997 referendum. This provision incorporated the role into existing legislation on ministerial salaries and disqualifications from the House of Commons, while ensuring continuity of functions during vacancies by allowing delegation to another Minister of the Crown designated by the Prime Minister. The creation addressed the advisory gap arising from the devolution of the Lord Advocate—previously the UK's principal legal adviser on Scots law—to the Scottish Executive, necessitating a dedicated UK law officer to represent Crown interests in Scottish affairs and maintain oversight of the devolution boundaries. Core functions were delineated in sections 32 and 33, empowering the to scrutinize bills for compliance with legislative competence and to refer them to the Judicial Committee of the Privy Council (later the ) if they exceeded devolved powers or encroached on reserved matters such as or defense. Additional responsibilities under Schedule 6 enabled referrals of devolution issues to the courts, reinforcing the UK's to challenge acts incompatible with the or legislation. These mechanisms embodied the Act's intent to implement an asymmetric model, preserving at Westminster by reserving veto-like interventions against potential overreach, rather than granting unchecked autonomy to Holyrood. The first appointment occurred amid the Scottish Parliament's initial operations, following its elections on 6 May 1999 and first sitting on 12 May 1999; Lynda Clark was named on 28 June 2000, serving until 2003 as the inaugural holder of the post. This timing aligned with the full activation of devolved institutions, positioning the office to operationalize the Act's safeguards from the outset of substantive law-making.

Adaptations Following 2014 Referendum and Beyond

Following the , in which 55.3% of voters rejected independence, the government persisted in pursuing a second , leading to expanded litigation responsibilities for the in defending constitutional matters. This shift manifested in heightened interventions to challenge bills perceived as encroaching on Westminster's authority over the Union. A pivotal example occurred in , when the referred devolution issues to the regarding the proposed Scottish Independence Referendum Bill. The , then Lord Stewart of Dirleton, intervened as a party to the proceedings, arguing that the bill related to the of independence under the and could not be justified under the pretext of a consultative . On 23 November , the Supreme Court unanimously ruled that the Scottish Parliament lacked competence to legislate for such a referendum, affirming the Advocate General's position and effectively blocking indyref2 without a Section 30 order transferring power from Westminster. This case underscored the office's growing role in judicially resolving separatist challenges post-referendum. Brexit further intensified these adaptations by exposing regulatory divergences between Scotland and the rest of the UK, prompting the enactment of the United Kingdom Internal Market Act 2020 to safeguard frictionless trade and limit devolved powers over goods, services, and professional qualifications entering Scotland. The Act empowered the UK Government, via the , to refer Scottish legislation to the under Section 33 of the if it unduly interfered with the internal market, resulting in multiple challenges to measures like the Scottish deposit return scheme and variations in alcohol minimum pricing. These post- mechanisms causally reinforced the office's function in upholding reserved economic powers against unilateral devolved actions that risked fragmenting UK-wide standards. In August 2024, amid the Labour Government's transition following the , Catherine Smith KC was appointed , succeeding Lord Stewart and reflecting continuity in prioritizing Union integrity despite the governmental change. The Office of the 's annual reports for 2023-24 and 2024-25 document sustained operational demands from these disputes, with the Scotland Office and OAG accounts highlighting integrated resource allocation for legal advisory and representational duties amid ongoing tensions.

Organizational Framework

Office Structure and Operations

The Office of the Advocate General for Scotland (OAG) maintains its primary headquarters at Queen Elizabeth House in , with a secondary office at in , , as part of the broader Scotland Office framework. This setup facilitates close coordination with Scottish legal proceedings while enabling liaison with UK Government departments in . The office comprises around 50 staff, predominantly lawyers qualified in , supplemented by administrative personnel, with approximately 85% based in as of March 2025. Structurally, the OAG operates under a hierarchical model headed by the Advocate General, who is advised by the Director and Solicitor to the Advocate General and supported by a Private Office team. Specialized divisions handle core functions: the Legal Secretariat manages statutory duties and ministerial support; the Advisory and Legislation Division delivers legal opinions on Scots law, devolution compliance, and scrutiny of Scottish Parliament bills; the Litigation Division prepares cases and represents the UK Government in Scottish courts; and a dedicated HMRC team addresses tax and employment disputes. A Business Support Team oversees administrative, financial, IT, and strategic operations across divisions. Operational focus centers on continuous monitoring of devolution boundaries under the , providing timely legal advice to ministers and departments on policy and legislation affecting Scotland, and supporting litigation to safeguard . This advisory and representational remit explicitly excludes prosecutorial activities, which fall under the separate Office and Service led by the . In the 2024-25 financial year, the office recorded average full-time equivalent staffing of 49, reflecting efficient resource allocation amid shared arrangements with host departments like the .

Resources and Staffing

The Office of the Advocate General for Scotland (OAG) relies on a compact team of specialist legal personnel, primarily solicitors seconded from the via the Government Legal Service for Scotland (GLSS), alongside administrative support. The office comprises approximately 40 lawyers plus additional staff, enabling focused operations from bases in and . Recruitment follows UK Civil Service protocols, with vacancies posted on the Civil Service Jobs website to ensure merit-based selection aligned with impartiality and competence standards. This model of minimizes direct hiring overheads while drawing on experienced practitioners to address queries efficiently. Funding derives from the Treasury through the Office's departmental expenditure limit, prioritizing lean resource allocation for legal advisory and litigation functions. For 2024-25, OAG gross expenditure totaled £6.4 million, yielding a net outturn of £2.887 million after £3.513 million in recoveries from legal fees and related income, down from £3.633 million net the prior year. The 2025 allocated an additional £0.878 million in administrative costs for 2025-26 over 2024-25 supplementary estimates, accommodating elevated caseloads in judicial reviews on reserved matters like without proportional staff expansion. Such budgeting underscores operational efficacy, with 98.8% of invoices processed within five days and full compliance on timelines, sustaining targeted interventions amid rising devolved disputes.

List of Holders

Chronological Roster with Key Appointments

The Advocate General for Scotland has been appointed as follows since the office's creation under the :
NameTermKey Notes
Lynda Clark (Baroness Clark of Calton)19 May 1999 – 20 March 2006First holder of the office, appointed by the Labour government; served approximately 6 years and 10 months.
Neil Davidson (Baron Davidson of Glen Clova KC)21 March 2006 – 14 May 2010Labour appointee; tenure of just over 4 years aligned with the end of the Labour administration.
James Wallace (Lord Wallace of Tankerness KC)12 May 2010 – 7 May 2015Appointed by the Conservative-Liberal Democrat coalition; former ; served nearly 5 years, overlapping the 2014 period.
Richard Keen (Lord Keen of Elie KC)29 May 2015 – 16 September 2020Conservative government appointment post-2015 ; tenure of over 5 years, including Brexit-related matters.
Keith Stewart (Lord Stewart of Dirleton KC)15 October 2020 – August 2024Conservative appointee; reappointed in October 2022; served approximately 3 years and 10 months amid ongoing UK-Scotland constitutional tensions.
Catherine Smith (Baroness Smith of Cluny KC)29 August 2024 – presentAppointed by the Labour government following the July 2024 ; sworn in on 27 September 2024.
Appointments have typically coincided with changes in government following general elections, with tenures averaging around 4-5 years, though varying by political cycle and individual circumstances; no acting holders or extended gaps are recorded in the sequence. Post-2014 , selections emphasized expertise in disputes, including Conservative picks from 2015 onward to address union safeguard roles.

Notable Transitions and Durations

The tenures of Advocates General for Scotland have generally ranged from four to seven years, reflecting alignment with government stability rather than fixed terms, as the position lacks statutory duration limits and changes primarily occur via elections, reshuffles, or personal resignations. Baroness Clark of Calton's initial seven-year service from 12 June 1999 to 5 May 2006 ended due to her appointment as a Senator of the , marking an early instance of judicial transition influencing office turnover. Her successor, Lord Davidson of Glen Clova, held the role for approximately four years from 5 May 2006 to 6 May 2010 amid Labour government continuity, though without a trigger. Subsequent appointments under Conservative-led administrations demonstrate patterns of extended stability during majority or coalition periods. Lord Wallace of Tankerness served a full five years from 12 May 2010 to 8 May 2015, coinciding precisely with the Conservative-Liberal Democrat coalition's term and illustrating longer durations under relatively secure parliamentary majorities. This contrasts with shorter intervals during phases of internal governmental flux, such as Lord Keen of Elie's five-year tenure from 2015 to 2020, which spanned multiple prime ministerial changes, and Lord Stewart of Dirleton's four years from 2020 to 2024 amid frequent reshuffles under Conservative leadership. The August 2024 appointment of Catherine Smith KC, created Baroness Smith of Cluny, following the Labour government's formation after the July general election, underscores the office's operational continuity despite partisan shifts, with the new holder assuming duties without interruption to advisory functions on reserved matters. Empirical trends across 25 years reveal no correlation with Scottish parliamentary minorities or majorities but strong ties to UK-wide political realignments, yielding an average tenure of about five years and highlighting the role's dependence on executive priorities over independent tenure protections.

Significant Interventions and Cases

High-Profile Devolution Disputes

In 2018, the then Advocate General, Lord Keen of Elie, jointly with the Attorney General, referred the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—passed by the Scottish Parliament on 21 March 2018—to the UK Supreme Court under section 33 of the Scotland Act 1998, questioning its legislative competence. The bill sought to preserve the continuity of EU-derived law in devolved areas post-Brexit by modifying retained EU law and executive powers, including provisions for the Scottish Parliament to amend UK-wide legislation. On 13 December 2018, the Supreme Court ruled that sections 14 (conferring power to restate EU law), 16 and 17 (enabling modifications to retained EU law), and 25 to 30 (attempting to secure the bill's ongoing effect) exceeded the Scottish Parliament's competence, as they interfered with the UK's constitutional framework for Brexit and reserved matters like international obligations. The ruling affirmed that devolved legislatures could not unilaterally alter the scope of retained EU law or condition the effects of UK Acts of Parliament. The Advocate General's office played a central role in the 2022 proceedings on the proposed Bill, where Lord Stewart of Dirleton opposed the Lord Advocate's reference under paragraph 34 of Schedule 6 to the , arguing that a on constituted a reserved matter under section 30(1)(a) (the Union) and section 30(2)(b) ( on reserved issues). The UK contended that the bill's purpose—ascertaining public support for —directly engaged the reserved question of the UK's territorial integrity, regardless of the bill's framing as consultative. On 23 November 2022, the unanimously determined that the lacked competence to legislate for the bill, as its principal purpose related to , a matter explicitly reserved to Westminster. In early 2023, the Advocate General advised the Scottish Secretary on the application of section 35 of the Scotland Act 1998 to the Gender Recognition Reform (Scotland) Bill, passed by the Scottish Parliament on 22 December 2022, which aimed to simplify gender recognition by removing the medical diagnosis requirement and lowering the age threshold to 16. The UK Government invoked section 35(1)(b) on 17 January 2023—the first such use—prohibiting the bill's submission for Royal Assent due to its potential adverse effects on reserved matters, including the operation of the Equality Act 2010 across the UK and the consistency of gender recognition certificates under the Gender Recognition Act 2004. The order was justified on grounds that the bill would create incompatibilities in single-sex spaces, fair competition, and equal treatment, undermining UK-wide policy coherence. The Office of the Advocate General's 2023-24 annual report highlights ongoing monitoring of devolution boundaries in areas like the internal market, including advice on legislative proposals affecting reserved trade and regulatory standards.

Supreme Court Engagements

The Advocate General for Scotland plays a central role in United Kingdom (UKSC) proceedings on devolved matters, particularly through references under section 33 of the , which allows the Advocate General and to challenge the legislative competence of Scottish bills before . These interventions assess whether provisions relate to reserved matters, such as the Union, international obligations, or retained EU , thereby safeguarding Westminster's over constitutional boundaries. Outcomes in such cases have empirically favored the preservation of , with the UKSC ruling key provisions in multiple instances, curtailing attempts to extend devolved authority into national frameworks. A prominent example is the 2018 reference concerning the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, jointly referred by the Attorney General and on 23 May 2018. The UKSC, in its judgment of 13 December 2018 ( UKSC 64), held that provisions converting EU law into retained EU law and conferring powers on Scottish ministers to modify UK-wide legislation exceeded the Scottish Parliament's competence, as they intruded on reserved areas including the Crown's in and the regulation of . This decision invalidated substantial elements of the bill, affirming that post-Brexit continuity measures remain a UK-wide . Similar challenges arose in the 2021 references of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) () Bill, referred by the law officers on 12 April 2021. On 6 October 2021 ( UKSC 42 and UKSC 43), the UKSC ruled that multiple provisions in the UNCRC Bill—aimed at direct incorporation and requiring Scottish ministers to "further realise" convention rights—related to reserved matters like and the civil law of , rendering them outside competence. For the Charter Bill, the court found incompatibilities with EU retained law and the Act itself, underscoring limits on unilateral incorporation of international instruments that could disrupt UK-wide obligations. These rulings demonstrated a where General-led references successfully debunk claims of devolved overreach, with the court emphasizing and the indivisibility of certain constitutional functions. Post-2022, the Advocate General's submissions contributed to the UKSC's unanimous decision in the reference by the on a proposed Scottish independence referendum bill ( UKSC 31, 23 November 2022). Opposing the reference under paragraph 34 of Schedule 6 to the Scotland Act, the Advocate General argued that legislation for such a inherently related to the reserved question of the Union, as it would advance independence—a matter explicitly excluded from devolved powers under section 30(1)(a) and Schedule 5. The court agreed, holding that the bill's purpose and practical effect crossed into reserved territory, effectively limiting separatist initiatives without Westminster consent and reinforcing the constitutional framework's bias toward preserving the UK's territorial integrity. This outcome, building on prior precedents, has empirically constrained maneuvers to bypass through consultative pretexts.

Criticisms and Perspectives

Nationalist Critiques of Union Defense Role

Scottish nationalists, particularly within the (SNP), have characterized the Advocate General's role as inherently biased toward preserving the Union, arguing it facilitates undue Westminster interference in devolved competencies. Critics contend that the office's statutory powers under sections 33 and 35 of the enable a veto over Scottish , portraying interventions as anti-democratic barriers to the expression of Scottish democratic will, especially on issues like or social reforms. For instance, during preparations for a second in 2022, the Advocate General opposed the Lord Advocate's reference to the , asserting that such a vote encroached on reserved matters concerning the Union, which nationalists viewed as thwarting without empirical justification beyond maintaining territorial integrity. A prominent example cited by nationalists is the 2023 blocking of the Gender Recognition Reform (Scotland) Bill under section 35, where the Advocate General advised the UK Secretary of State that the legislation's provisions on gender certificates could undermine UK-wide equality protections and reserved immigration powers, prompting SNP accusations of overreach into purely devolved equality and welfare matters. SNP leaders, including First Minister Nicola Sturgeon, described this as an "unprecedented veto" that undermined Holyrood's mandate from the 2021 election, framing the Advocate General as a partisan enforcer of Unionist priorities rather than an impartial legal advisor. Similar objections arose in appointments, such as the 2015 nomination of Richard Keen QC, a prominent unionist advocate, which the SNP decried as embedding pro-Union bias in the role's execution. Despite these portrayals, indicates limited frequency of interventions and a judicial track record that upholds challenges primarily when legislative competence is demonstrably exceeded, rather than as routine obstruction. Between 1999 and 2023, the referred only a handful of Scottish bills to the under section 33, with outcomes reinforcing statutory boundaries—such as upholding the block on the GRR Bill in , where courts found reasonable grounds for incompatibility with UK-wide frameworks—rather than evidencing systemic vetoes on valid devolved policy. Nationalists' claims of inherent bias overlook the role's first-instance advisory function and appellate deference to judicial determination, which has preserved causal equilibrium in without overturning core Scottish competencies, as seen in successful defenses like minimum alcohol pricing upheld in 2017. This suggests critiques amplify procedural safeguards as existential threats to , yet lack substantiation in overturned volumes or patterns of arbitrary nullification.

Unionist Views on Safeguarding Reserved Matters

Unionists emphasize the 's critical function in upholding the Scotland Act 1998's delineation of reserved matters, such as the , , and under control, thereby preserving the unitary state's coherence against devolved overreach. This role, they argue, enforces statutory limits through pre-emptive legal scrutiny and court referrals, ensuring legislation remains within competence and averting unilateral alterations to the 's . Following the 18 September 2014 independence referendum, in which 55.3% of voters rejected separation—affirming the existing devolution settlement—the office has bolstered post-referendum stability by systematically defending reserved powers amid persistent separatist pressures. Unionist figures, including Scottish Secretary Alister Jack, have credited the Advocate General with proactively identifying competence risks in proposed bills, facilitating coordinated governance that aligns devolved actions with UK-wide imperatives and mitigates risks of economic or constitutional discord. Empirical patterns show interventions have intensified since devolution's inception, with challenges to Scottish legislation becoming more routine to enforce boundaries, thereby preventing incremental erosions that could fragment the Union. Pro-union perspectives further highlight the office's realist counterbalance to devolved institutions where separatist agendas may seek to normalize encroachments via fiscal maneuvers or symbolic , grounded in the causal necessity of legal enforcement to sustain the mandate against asymmetric 's destabilizing potentials. By privileging judicial outcomes over political expediency, the ensures reserved domains remain insulated, fostering empirical stability as evidenced by upheld Government positions in devolution disputes that reinforce the settled constitutional order.

Debates on Independence and Bias Claims

Scottish National Party figures and pro-independence advocates have accused the Advocate General for Scotland of inherent bias towards preserving the Union, arguing that the office's defense of reserved matters under the systematically obstructs ambitions, particularly on independence-related legislation. In the 2022 Supreme Court reference on a potential second , then-incumbent Lord Stewart of Dirleton, representing the Government, contended that the proposed bill intruded on reserved constitutional matters, a position the Court unanimously upheld on 23 November 2022 based on rather than political preference. Critics, including SNP spokespeople, framed such interventions as partisan, but no judicial findings have substantiated claims of improper influence, with the Court's reasoning centered on the Act's explicit reservation of the Union and . Pre-2024, under Conservative-led UK Governments, accusations intensified, with nationalists alleging alignment with Tory unionism; for instance, Lord Keen of Elie, from 2015 to 2020, had publicly campaigned against in the 2014 referendum, prompting claims from pro-independence outlets that his tenure exemplified politicized legal advocacy. These critiques persisted despite the office's statutory duty to uphold interests in disputes, as evidenced by consistent engagements where arguments succeeded or failed on legal merits alone. Post-July 2024 Labour election victory, the appointment of Baroness Smith of Cluny on 27 September 2024 signaled continuity, with no alteration in the role's mandate or approach to challenging overreaches, underscoring that perceived bias stems more from the office's structural alignment with than transient party politics. Labour's opposition to unilateral further reinforced this, as articulated in post-election statements prioritizing boundaries. Debates on the office's fate in an independence context have featured pro-independence proposals to abolish or devolve it, viewing it as a vestige of Westminster control incompatible with sovereignty; however, unionist perspectives, including those from UK legal experts, dismiss such reforms as premature and illogical absent negotiated separation, arguing the role's persistence enforces the Act's causal framework where constitutional changes require UK-wide consent to avoid unilateral dissolution of the devolved settlement. precedents up to 2025 affirm this, rejecting Scottish competence for independence referendums without section 30 orders, with no recorded instances of the Advocate General's input deviating from verifiable statutory constraints. Thus, while bias narratives persist in partisan discourse, empirical outcomes in high-stakes cases demonstrate adherence to legal precedents over ideological favoritism.

References

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