I am delighted to open the debate on the Courts Reform (Scotland) Bill. The bill takes on the majority of Lord Gill’s recommendations from the Scottish civil courts review. I wish to thank all those organisations and individuals who responded to the consultation and who gave evidence to the committee, as well as our justice partners. I would especially like to thank the members and the clerks of the Justice Committee for their work over the past year.
The bill delivers on many of the Scottish civil court review recommendations to improve what Lord Gill described as the “slow, inefficient and expensive” Scottish civil justice system. Lord Gill emphasised at stage 1 that these reforms are “50 years overdue”. The main principles of the bill are that the right cases should be heard in the right courts at the right costs, unnecessary delays to users should be minimised, and the efficiency of the courts should be increased.
The bill will set a new exclusive competence for the sheriff court in order to remove a proportion of cases from the Court of Session so that it can focus on Scotland’s most challenging and complex civil cases and develop the law. A new national specialist personal injury sheriff court will be created, maintaining a centre of expertise where personal injury cases from throughout the country can be heard. Other key planks of the reforms include further specialisation at the shrieval level, a new sheriff appeal court and a new judicial tier in the sheriff court involving summary sheriffs, who will use a new simple procedure, facilitating easier access to justice.
A number of important improvements were made to the bill at stage 2, many of which responded to suggestions raised during the Justice Committee’s stage 1 scrutiny of the bill. In response to an amendment proposed by Sandra White, we agreed to reduce the exclusive competence from the proposed £150,000 to £100,000. Many stakeholders who appeared in front of the Justice Committee believed that the £150,000 figure proposed by Lord Gill was too high, and the committee agreed with that view. The figure of £100,000 that was agreed will help to meet those concerns and will still be able to underpin the reforms by delivering the more efficient and affordable system envisaged by Lord Gill. The Law Society of Scotland called the figure a “significant improvement”.
The committee also heard concerns from some witnesses, including the Scottish Trades Union Congress, that litigants whose cases will now be raised in the new personal injury court rather than in the Court of Session will no longer have to use counsel and will instead have to apply to the sheriff to grant expenses for the use of counsel if they wish it.
Trade unions have always seen the litigation process as important to improving workplace safety, and they have engaged fully and constructively throughout the courts reform debate, all the way back to Lord Gill’s original review. They have shown willingness to support change; they have also expressed legitimate concerns to which we in the Scottish Government have listened.
The trade unions are also very worried about section 69 of the Enterprise and Regulatory Reform Act 2013. They see the dangers in a system in which the cost-recovery regime—perhaps unintentionally—stacks the deck in favour of those with the deepest pockets. If the Scottish Government had the power, we would reverse section 69 tomorrow. We lost that opportunity in the referendum, but perhaps powers over health and safety will be given to this Parliament as part of the promised package of new powers. If that happens, we will act.
In the meantime, we will use the powers that we have to ameliorate the worst consequences of section 69. Therefore, we supported John Finnie’s stage 2 amendments to allow, where appropriate, health and safety cases of any financial value to be heard by the specialist personal injury court, and to put Sheriff Principal Taylor’s recommendation on sanction for counsel on a statutory footing. That test will ensure those who require counsel will have access to it, while leaving the decision whether that is applicable to the person best placed to decide—the sheriff.
It will be for each sheriff to determine if one or more aspect of the Taylor test for sanction is met. However, it would seem to me to be self-evident that, for at least the next few years until the courts have had the chance to properly set the parameters of the law in light of section 69, the sanction test is likely to be met in the majority of work-related personal injury cases. Included in the test is that sheriffs must have regard to the equality of representation of the parties. That will ensure that counsel is available to parties when appropriate.
Scotland is—rightly—proud of the considerable skills and expertise of its independent referral bar. I agree with the learned dean that the bar exists
“to represent those who need skilled representation wherever and whenever they need it.”
I do not see that in any way diminished by the bill’s measures. I agree with the Lord President, who said:
“the opportunity should still exist for the specialist bar to work in the sheriff courts because some significant litigation will be taking place there. It would be helpful and in everyone’s interests if members of the Faculty were given proper opportunities to appear in significant sheriff court actions. I would greatly regret it if they didn’t.”
He also said:
“In my view, owing to the excellence of our independent bar, the Faculty of Advocates will survive these reforms and continue to co-exist with its solicitor colleagues, each complementing the other’s services and skills and maintaining a high standard of advocacy in all of the courts.”
The bill will ensure that litigants can access representation by counsel when they need it. However, sanction for counsel is not the only factor in the important equality of arms issue. Another issue is the procedures used in low-value personal injury cases.
I have said in the past—I will repeat it now—that a small claims type procedure with very limited cost recovery is no place for personal injury cases. There must be fair cost recovery in personal injury cases of any value. I do not see how that could be achieved by a fixed-cost regime. Therefore, I agreed with the Lord President when he recommended a separate table of fees for personal injury cases raised under simple procedure. That, along with other issues relating to the costs and funding of litigation, will be progressed by the Scottish Civil Justice Council in responding to Sheriff Principal Taylor’s recommendations on that issue.
In response to concerns that the test for transfer of complex cases to the higher courts was too strict, we lodged further amendments at stage 2 to ensure that that is not the case. That will ensure that those complex and challenging cases that require the attention of Scotland’s top civil court are able to be heard there, irrespective of the value.
As we have discussed in relation to amendments tabled by Elaine Murray and Graeme Pearson on ensuring that provision has been made for staffing and resources in terms of the new courts established by the bill, those matters are fully catered for.
Lord Gill, Sheriff Principal Stephen and Mr McQueen all emphasised in their evidence to the committee that the sheriff court system will be able to cope. The Lord President said:
“I am absolutely certain that the capacity exists in the sheriff courts to absorb all of the business”.—[Official Report, Justice Committee, 22 April 2014; c 4541.]
A deluge of cases will not descend on the sheriff courts. That will not happen, as Sheriff Principal Stephen pointed out to the committee. The exclusive competence will not be raised until the personal injury court is ready to receive cases, as the Scottish Court Service’s chief executive, Eric McQueen, told the committee. Existing cases will not suddenly be transferred from the Court of Session to the personal injury court; rather, the number of cases will gradually build.
Existing personal injury cases in the Court of Session will see out their lives there. People will be able to raise new personal injury cases in the most appropriate court, whether that is the personal injury court, their local sheriff court or—for cases whose value is more than £100,000—the Court of Session. At an exclusive competence of £100,000, we expect only a 3 per cent rise in the number of civil cases that are raised in local sheriff courts, and we expect the majority to be raised in the new personal injury court.
The Judiciary and Courts (Scotland) Act 2008 compels the Scottish Court Service to prepare and publish a report on the carrying out of its functions each year, which is sent to the Scottish ministers and laid before Parliament.
The bill’s passage is an important milestone in the court reform journey. We will take that journey together with our justice partners to ensure that our court system is fit for purpose in the 21st century. I look forward to hearing members’ views on the bill.
That the Parliament agrees that the Courts Reform (Scotland) Bill be passed.