Swinney Hands Scotland’s Dual Legal Role to a Former Lord Advocate

First Minister John Swinney named former Lord Advocate Lord Boyd of Duncansby on 29 September 2026 to review Scotland’s dual-role law officers. The work starts in the new year, and Boyd’s current plan is to publish in the latter part of 2027.

Boyd held both of those jobs himself from 2000 to 2006. The terms of his review still allow ministers to keep them in one pair of hands.

A Former Lord Advocate Will Judge the Dual Role

Ruth Charteris is Lord Advocate, head of the Crown Office and Procurator Fiscal Service and the Scottish Government’s principal legal adviser. Solicitor General Brian Gill backs her in both jobs and can act if she is away. Law officers have long said they keep politics out of prosecution decisions, a duty written into the Scotland Act.

Swinney told the Scottish Parliament that an independent review into the roles would test whether that setup still serves the country. Boyd will name a reference group, take evidence from judges, professional bodies and MSPs, and send proposals to ministers. The government will supply office support. Swinney said the conclusions would be Boyd’s own.

Boyd was Solicitor General from 1997 to 2000 and Lord Advocate from 2000 to 2006, and he led the Lockerbie bombing prosecution in 2000. He sat as a Senator of the College of Justice from 2012 to 2024, a 12-year spell on the bench. Swinney presented that record as the reason to give him the chair. It is also the record of a man who lived inside the dual role for six years and is now asked, with an open mind, whether the office should be broken up.

I am very pleased to have been asked by the First Minister to conduct this review. The issues it will consider are of fundamental importance to the administration of justice in Scotland. Any recommendations must safeguard the independence and integrity of the prosecution system, sustain public confidence, strengthen accountability, and ensure that Ministers continue to receive high-quality, professional legal advice. I approach the task with an open mind and will consult widely before making my recommendations to Ministers in due course.

Lord Boyd of Duncansby, review chair, Scottish Government announcement, 29 September 2026

The published terms say the review is open to all conclusions, including a finding that the current arrangements should be retained. That is the hinge. Boyd is not required to recommend a split, and Swinney said the evidence could point to reform or to the status quo.

WHAT LORD BOYD MUST REPORT ON

• The dual role: Advantages and disadvantages of the Lord Advocate serving as head of prosecutions and deaths investigations and as the minister who is principal legal adviser to the government.
• The safeguards: How independence rules work in practice at ministerial and official level, including how the limits of the dual role are understood.
• Other models: Law officer setups in the rest of the UK and in other countries the review picks for comparison, and what those models mean for the rule of law, government, justice, Holyrood accountability and public confidence.
• The machinery: Any legal, institutional, office or operational changes needed to put proposals into effect.
• Public understanding: Barriers to how the jobs are understood, and steps that could make the roles clearer.

Swinney said the present system lets government policy take expert legal advice while the Lord Advocate stays answerable to Parliament for prosecution work. He also said no system, however long standing, should sit beyond examination. The examination he has now commissioned will not land until the latter part of 2027, and even then it reports to ministers rather than to a vote that night.

Ministers Called the Same Setup Appropriate in March

This is not the first time the government has paid for a close look at the same office. In 2022 it asked Malcolm McMillan, former chief executive of the Scottish Law Commission, to research the history and functions of the law officers. His report came out on 10 March 2026 and was written to inform a future consultation. It did not recommend a new model.

Swinney told MSPs on 29 September that McMillan’s paper was a foundation, not an answer to what Scotland should do next, and that it did not work through the detailed questions a change would raise. In March, two months before the Holyrood election, the government took a clearer line. Justice Secretary Angela Constance told MSPs the current position was appropriate, and that it would be for the next administration to decide whether to change it.

The SNP had pledged at the 2021 Holyrood election to consult on separating the chief prosecutor from the government’s legal adviser. That consultation did not run in the last parliament. In June, when Charteris was nominated after the May election, Swinney told the chamber he would keep engaging on the issue. Three months later he has turned that promise into a review whose own chair does not expect to report until the latter part of 2027.

THE PATH FROM PLEDGE TO REVIEW

1. 2021: The SNP manifesto pledges a consultation on separating the Lord Advocate’s functions.
2. 2022: Ministers commission Malcolm McMillan to research the law officers’ roles and functions.
3. 10 March 2026: The McMillan report is published. The government says the current position is appropriate and leaves change to the next administration.
4. May 2026: The Holyrood election is held. Dorothy Bain later says she will step down after five years in post.
5. June 2026: Ruth Charteris, previously Solicitor General, is named Lord Advocate. Swinney tells Parliament he will keep engaging on the dual role.
6. 9 September 2026: The Commons Scottish Affairs Committee opens its own inquiry into splitting the job.
7. 29 September 2026: Swinney appoints Lord Boyd. Work begins in the new year, with a report due in the latter part of 2027.

Handing a former occupant of the dual role a brief that still permits the status quo, after a March paper the government already used to call the setup appropriate, is a long way from the 2021 promise of a consultation on a split. The calendar does the rest of the work. Charteris will have been in post well over a year before Boyd even starts, and she can still hold both jobs when he files.

The Murrell Memos Holyrood Could Not Ignore

The dual role became a live political problem when it emerged that then Lord Advocate Dorothy Bain had briefed Swinney on the criminal case against Peter Murrell, the former SNP chief executive and estranged husband of Nicola Sturgeon. On 20 March 2025, Bain told Swinney that Murrell had appeared in court charged with embezzling over £460,000 from the party. A further update went to the First Minister in January 2026, when the indictment was served. Details of the charge were not public until February 2026. Murrell was jailed in June after a guilty plea.

Bain told MSPs the notes were limited factual information on a major case, sent so ministers would not comment on live proceedings, and that she was not involved in the prosecution because it concerned politicians. Crown Office officials had advised her it was proper to give that limited information. Opposition MSPs called the briefings a conflict and demanded that the dual role be scrapped. Bain denied giving the government a political edge. Law officers have consistently stressed their independence from political considerations.

The same tension had already been written into a Holyrood record. McMillan’s report notes that the Committee on the Scottish Government Handling of Harassment Complaints, which examined the botched investigation into former first minister Alex Salmond, recorded a long-standing tension in the Lord Advocate’s dual roles and said public perceptions matter. Calls to split the jobs since devolution have been a running argument in the legal profession, and they grew louder after the Murrell notes.

Bain’s defence was process. The political damage was the fact of the First Minister being told, in private, about a case against his party’s former chief executive months before voters could read the same figure. That is the specimen the dual role now has to live with, and it is the reason a review that still permits no change at all will be read against a very specific set of emails.

Why the Scotland Act Still Blocks a Holyrood Split

Even a firm Boyd recommendation to split the jobs would not let Holyrood finish the work. McMillan’s research, published on 10 March 2026, sets out the legal bases. Section 44(1)(c) of the Scotland Act 1998 makes the Lord Advocate and the Solicitor General members of the Scottish Government. Section 48(5) says decisions of the Lord Advocate as head of criminal prosecution and the investigation of deaths shall continue to be taken independently of any other person. Section 29(2)(e) puts a further lock on Holyrood: a provision is outside the Scottish Parliament’s legislative competence if it would remove the Lord Advocate from that head-of-prosecutions post.

The Scotland Act 2016 changed which parts of the 1998 Act Holyrood can modify, but it did not hand over the power to strip the Lord Advocate of the prosecution crown. McMillan also notes that some narrower changes might be tried by administrative decision, without a new statute. The core split, prosecutor in one office and government adviser in another, is the change that needs London.

Swinney said he would speak to Labour ministers about the review. He also told MSPs that UK ministers have already treated the question of whether to change the Scottish law officers as a matter for Holyrood to lead. That sits awkwardly beside the statute. Holyrood can hold the debate. It cannot, on its own, take the Lord Advocate out of the prosecution service.

Westminster has not waited for Boyd. On 9 September 2026, 20 days before Swinney’s statement, the Commons Scottish Affairs Committee opened an inquiry into the case for and against splitting the dual role. Chair Patricia Ferguson said the Lord Advocate’s job is unique in combining chief legal adviser to the Scottish Government with head of the prosecution service, and that the handling of Operation Branchform, the police investigation that led to the Murrell case, had brought the dual role’s problems to the fore again. In 2024 Joanna Cherry, then an MP, introduced a Westminster private member’s bill to give Holyrood the power to divide the office into two jobs. The legal key has been sitting in London for years. Boyd’s paper will still land on a Scottish ministerial desk.

England, Ireland and Malta Already Split the Job

McMillan’s chapter on other countries is the part of the March report Boyd is now being paid to turn into options. England and Wales already divide the work. The Attorney General sits as the UK government’s senior legal adviser. The Director of Public Prosecutions runs the Crown Prosecution Service. Northern Ireland and Ireland moved the same way. Malta split the jobs after a 2018 opinion from the Venice Commission of the Council of Europe, which advised an independent prosecutor so the attorney general would not both advise government and head criminal cases.

Scotland’s law officers, McMillan wrote, ended up with wider functions than their counterparts in England and Wales, in part because the Lord Advocate and Solicitor General are ministers with collective responsibility and the Lord Advocate is also head of prosecutions and deaths investigations. Some places still combine those two principal jobs, among them Cyprus, Singapore, Jersey and Guernsey. McMillan’s interviews with current and former office holders found tensions in the Scottish system, conventions designed to manage them, and no perfect fix. Whatever model is used, he recorded, still depends on the integrity of the people appointed.

HOW OTHER SYSTEMS DIVIDE THE JOBS

The Venice Commission line is the one reformers keep repeating: a prosecutor who also sits as a government adviser can look captured even when the statute says the prosecution decisions are independent. McMillan’s own interviews offered a milder prescription if ministers wanted to keep the dual role, including a published protocol on the existing conventions and a dedicated website that explains the two jobs. Boyd’s terms go further. He has to look at other countries’ models and at the laws that would be needed to copy them.

Russell Findlay Called for an Immediate Scrap

Scottish Conservative leader Russell Findlay told MSPs the government should scrap the dual role now. “We really don’t need another SNP review,” he said. Swinney replied that tearing the office up on the floor of the chamber was not the right way to make policy. That exchange is the political split in a single afternoon: one side wants the jobs separated before Boyd hires a secretary, and the other wants a paper in the latter part of 2027, then a possible public consultation, then a Holyrood debate, then a UK bill.

Scottish Liberal Democrats said the 2021 pledge had already conceded the problem, that a conflict of interest sits in the dual role, and that Scotland should have an independent Director of Public Prosecutions. That is the England-and-Wales model with Scottish job titles. It is also the outcome Boyd is free not to recommend.

In 2021, the SNP recognised the need for reform of Scotland’s law officers.

We don’t need another review to tell us what we already know, there is a conflict of interest in the Lord Advocate’s dual role.

We have long called for an independent Director of Public Prosecutions. pic.twitter.com/4BfKFjzhXs

— Scottish Lib Dems (@scotlibdems) September 29, 2026

WHERE THE PARTIES NOW STAND

• The government: An independent review, open to keeping the current setup, reporting to ministers in the latter part of 2027, with a public consultation only if changes are then proposed.
• Scottish Conservatives: Scrap the dual role now, without waiting for Boyd.
• Scottish Liberal Democrats: Stop commissioning reviews and create an independent Director of Public Prosecutions.

The loud objection after the statement was the date. A report in the latter part of 2027 keeps the present structure in place through another full year, and the person asked to judge it spent six years doing both jobs. Reporting to the same ministerial team that called the setup appropriate in March adds a second problem of appearance. An independent review that still needs Swinney’s government to accept the paper, consult on it, and then ask London for a statute is independent only up to the point where the politics start again.

Charteris Keeps Both Jobs Through the Boyd Review

Charteris and Gill remain in post while Boyd works. Swinney thanked them for supporting the review and said they had welcomed a chance to improve public understanding of their roles. He also said that once the report is in, ministers will consider it with care. If changes are recommended, those proposals may then form the basis of a public consultation, and Parliament would scrutinise whatever the government then decides. There is no date for that consultation, because it is not promised unless Boyd first proposes a change and ministers then agree to take it forward.

McMillan had already recorded that public perception of the Lord Advocate’s independence is important, that two law officers give the office capacity for a heavy workload, and that the Lord Advocate has a constitutional job in upholding the rule of law inside government itself. Those are the arguments for leaving the dual role alone. The Murrell notes, the Salmond inquiry’s remark about a long-standing tension, and the Venice Commission’s advice to Malta are the arguments for taking it apart. Boyd is being asked to hold both sets of facts and still file in the latter part of 2027.

Until then the office on 29 September is the office Scotland will still have. Charteris will head prosecutions and advise ministers, Gill will deputise in both roles, and any split will wait on Boyd’s paper, a possible consultation, a Holyrood decision, and a UK statute Holyrood cannot pass on its own.