Contents
- Attendance
- Subordinate Legislation
- British Transport Police
- Crown Office and Procurator Fiscal Service
Subordinate Legislation
Sheriff Court Simple Procedure (Limits on Award of Expenses) Order 2016 [Draft]
Courts Reform (Scotland) Act 2014 (Relevant Officer and Consequential Provisions) Order 2016 [Draft]
Good morning and welcome to the eighth meeting of the Justice Committee in session 5.
Agenda item 1 is consideration of subordinate legislation. I welcome Annabelle Ewing, the Minister for Community Safety and Legal Affairs, to speak to the three affirmative Scottish statutory instruments before us today. We will take evidence on the first two SSIs together because they relate to similar matters to do with civil procedure reform.
I also welcome the two Scottish Government officials who are accompanying the minister this morning: Walter Drummond-Murray is from the civil law and legal system division; and Greig Walker is from the directorate of legal services. I remind members that officials are permitted to give evidence under this item but may not participate in the formal debate on the instruments under item 2. Items 1 and 3 give members a chance to put to the minister and her officials any points on which they seek clarification.
I invite the minister to make an opening statement.
I am pleased to have the opportunity to speak briefly to the first two SSIs, which continue our work to implement the reforms set out in the Courts Reform (Scotland) Act 2014.
The draft Sheriff Court Simple Procedure (Limits on Award of Expenses) Order ensures that the current policy restricting the recoverability of expenses in small claims is maintained in the new simple procedure, which is to replace the small claims procedure on 28 November 2016.
The draft Courts Reform (Scotland) Act 2014 (Relevant Officer and Consequential Provisions) Order provides for a number of consequential amendments as a result of the reforms, including those related to the introduction of simple procedure. In addition, after the appointment of the first auditor of the sheriff appeal court this year, the order adds that post to the list of relevant officers in section 107 of the 2014 act with regard to the imposition of fees.
That is a brief introduction. I am happy to take any questions.
On the limits on award of expenses order, I note that the Delegated Powers and Law Reform Committee made a couple of observations. I want to address its second observation, which relates to the
“drafting error in paragraph 2 of the table of civil legal aid fees in new Schedule 2A”,
which provides an incorrect description of the paragraphs. The note says:
“The DPLR Committee noted that the Scottish Government Intends to correct this error by correction slip but called on the Scottish Government to correct the error by amending instrument”.
Can the minister give us feedback on her position on the Delegated Powers and Law Reform Committee’s request? I certainly instinctively feel that that committee is correct to request that the error be replaced rather than simply corrected by a correction slip.
I seek clarification that you are definitely speaking about the right instrument.
I may have got it wrong. I am talking about the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2016. Am I on the wrong instrument? Have I got ahead of myself?
I think so. We will come to that instrument later.
In that case, can you read that into the report when we come to that instrument, convener? I will not bother saying it again.
Okay. Thank you.
If there are no other questions, do you want to make any closing remarks, minister?
No, thank you.
We will move on to deal with the motions.
Motions moved,
That the Justice Committee recommends that the Sheriff Court Simple Procedure (Limits on Award of Expenses) Order 2016 [draft] be approved.
That the Justice Committee recommends that the Courts Reform (Scotland) Act 2014 (Relevant Officer and Consequential Provisions) Order 2016 [draft] be approved.—[Annabelle Ewing]
Motions agreed to.
Maximum Number of Judges (Scotland) Order 2016 [Draft]
We move to agenda item 3, which is also subordinate legislation. I invite the Minister for Community Safety and Legal Affairs, Annabelle Ewing, to speak to the third affirmative SSI before the committee today, on the maximum number of judges.
Thank you, convener.
The draft Maximum Number of Judges (Scotland) Order deals with the maximum number of judges, as set out in section 1(1) of the Court of Session Act 1988. The order that is before members will increase the maximum number of judges in the Court of Session by one, so that the total will be 35.
Judges of the Court of Session also sit as judges of the High Court of Justiciary, of course. An increase in the number of judges in the Court of Session is required as a consequence of the recent appointment of Lady Smith as chair of the Scottish child abuse inquiry. Lady Smith is an inner house judge of the Court of Session on secondment to the inquiry. During the secondment, she will not be available to sit in court, but she will remain a judge for the purposes of the statutory limit that is set forth in the 1988 act.
As the Scottish child abuse inquiry is expected to last until at least October 2019, the Lord President requested an additional judge to meet the demands of business in the Court of Session and the High Court. In that regard, the Lord President did not consider that a series of temporary appointments for that period of time would secure the most efficient disposal of court business and took the view that it would be neither realistic nor sustainable to proceed in such a fashion. That is why we have brought the order before the committee.
What will happen to the number of judges following the completion of the inquiry in 2019?
It will depend on the circumstances at the time. If the inquiry finishes in 2019, Lady Smith will remain an inner house judge. The total number of judges at the time will depend on who else is there and who is seeking retirement.
Further to the Lord President’s request for an increase in the overall number of judges to 35—although, in effect, there will be 34 operational judges—the Cabinet Secretary for Justice has made it clear to the Lord President that it would be sensible to review the desirability of maintaining the number of judges at the maximum each time a request is made for a new senator appointment in the future. The issue will be kept under consideration as we go forward.
Do you think that it is fair to assume that a request will be made to reduce the number to 34 on the inquiry’s completion?
We cannot know that at this time. We would have to take a view on the circumstances that obtained at the time. While Lady Smith is leading the child abuse inquiry, she is not available to sit in the inner house. In those circumstances, the Lord President requested that that de facto gap be filled, and that is what the order seeks to do. We want to ensure that Lady Smith is in a position to get on with chairing the inquiry.
As the committee considers whether to agree to the motion on the order, it must consider the problem of the financial implications, which are dealt with in paragraph 10 on page 2 of our paper. The proposal that you are putting forward will have no financial implications at the moment, because Lady Smith’s salary and pension will be paid for by the inquiry. However, following the inquiry’s completion, the cost of the salary and pension of an additional judge will have to be met. Where will that money come from? Is it the case that, immediately after the completion of the inquiry, a proposal will be made for the change to the number of judges to be confirmed at 35 and for the costs associated with that to be met?
The inquiry is scheduled to finish no earlier than October 2019, but we do not know whether that will be the final date for the inquiry’s completion. We will have to see what the circumstances are at that time. We will consider the position carefully and in the light of any further requests from the Lord President at the time.
I am unable to foresee exactly what the position will be on the inquiry’s completion because we do not know when the inquiry will be completed and we do not know what the position will be as regards the number of judges or senators in post at the time—things could happen in the interim period.
Therefore, it is incorrect to say that the proposal is cost neutral. It is cost neutral at the moment, but when Lady Smith finishes her inquiry, 35 judges will have to be paid for. Greig Walker is shaking his head, but I presume that Lady Smith’s salary and pension will be paid for by the inquiry only for as long as the inquiry is on-going. When the inquiry finishes, we will have 35 judges, so the proposal is not cost neutral because, at that point, we will have to pay for the salaries and pensions of 35 rather than 34 judges, as is the case while Lady Smith’s salary and pension are being paid for by the inquiry.
We are saying that the measure is cost neutral as of today. I am not making any predictions with regard to the future. As I said, there are at least two variables. First, we do not know exactly when the inquiry will be completed. The inquiry should be allowed to do the job that it has been tasked with under the excellent direction of Lady Smith. Secondly, we do not what the situation will be as regards the number of judges that there will be at that unspecified date in the future or which senators might be seeking to retire.
I am trying to be helpful, but I do not have a crystal ball. As of today, the order will be cost neutral. We will keep the matter under consideration in future years. As I pointed out, the cabinet secretary has already made it clear to the Lord President that the issue will be kept under consideration. I hope that the member takes reassurance from the fact that we are always looking at the cost of the operation of the justice system.
Would any change come back to this committee for consideration?
I am fairly confident that any change to the legislative position would require to be considered by the committee. If I am still in post, I would be happy to come back to the committee at a future date.
Can you confirm that it would be a change to the legislative position if, after the inquiry has ended, a decision is made to maintain the increase in the number of judges to 35 that we are being invited to agree to today, which at present is cost neutral but which will no longer be cost neutral? Would the matter come back to this committee if the number does not change but the financial implications do?
10:15
If it was deemed to be a change to the legislative position that would trigger the committee’s involvement, the matter would come back to the committee.
Would the financial implications trigger that change?
I would have to look carefully—as would the committee clerks—at what would trigger the committee’s involvement. If the change was proposed by way of an order that required the committee’s involvement, the matter would come back to the committee.
We are being asked to agree to the motion on the order today on the basis of the fact that you have said that it has no financial effect—it is cost neutral. If that position changed, I would expect the matter to come back to the committee and I would be worried if a Government minister did not want it to come back to the committee.
I am not making a suggestion either way. You have posed a technical question about what might happen down the line and whether that would require a legislative change through an order. That is the nub of the matter. If such a change was required, of course, the committee would have oversight of that. I am trying to be helpful, but I do not have a crystal ball that tells me about all the variables that are involved, including the two principal ones that I have mentioned.
The order is cost neutral as long as the inquiry continues. As soon as the inquiry ceases, there will potentially be a cost implication. If you cannot tell us today whether the matter would come back to the committee or what the procedure would be in that eventuality, perhaps you can write to the committee on that.
I am happy to do that, convener.
Is the Government, as a matter of policy, continuing with the view that the number of operational judges that are required is 34?
I understand that that is the position. However, we have the particular circumstances of the very important child abuse inquiry—Lady Smith has agreed to take over the direction of that inquiry—which is why we are in the position that we are in.
Sure. Therefore, the policy surrounding the number of operational judges remains unchanged. The processes for removing a judge from judgeship are extremely onerous and are not within the gift of politicians. Therefore, in a practical sense, the option of removing a judge to conduct the inquiry is not available—is that correct?
I think that there are particular rules that are not within the gift of the Scottish ministers—and rightly so, given the separation of powers. The decision was made that Lady Smith would take up the role of chairman of the inquiry, which leaves a de facto gap in the number of senators that are available to ensure the smooth administration of justice in Scotland. The Lord President made the request and the Scottish Government was minded to accede to it in the particular circumstances that pertain at this time. That is the background to the order that is before the committee today.
I want to follow a similar line of inquiry. The situation at the moment is cost neutral, but you said that, without a crystal ball, it is impossible to gauge who may step down from the role and where we might be in, say, 2019 and thereafter. In acceding to the Lord President’s request, have you made any assessment of the pattern of retirements over the previous five or 10 years or, in looking ahead, of the likelihood of retirements between now and 2019 that may leave us in the position that, come 2019, the situation will remain cost neutral because we will still have 34 judges?
I do not have that information to hand, but I am happy for my officials to look into the matter and see whether there is any information that we can helpfully provide to the member.
Is there a statutory age at which judges retire? Is it 70 or 75?
It is 70.
You can perhaps answer Liam McArthur’s question by looking at the ages of the existing judges and provide that information to the committee.
Certainly.
Thank you. If members have no further questions, do you wish to add anything, minister?
No.
In that case, we move to the debate. I ask the minister to move motion S5M-01715.
Motion moved,
That the Justice Committee recommends that the Maximum Number of Judges (Scotland) Order 2016 [draft] be approved.—[Annabelle Ewing]
I just want to check something. Does the wording of the motion mention the order being cost neutral?
The wording of the motion? I do not know what you have before you, but I am looking at the order.
The background information mentions the order being cost neutral.
If we are waiting for further written information from the minister, we will be agreeing to something today without knowing the implications of what the minister is going to write to us about.
I do not think that the information affects the motion today, per se. I think that the issue is that we will not quite know what the implications will be when the inquiry ends. If we were perhaps dubious about appointing Lady Smith—
No, that is not where the dubiety is. For me, the dubiety will occur in 2019, if someone looks back to the Official Report of this meeting and sees that we agreed to the motion even though we were waiting for outstanding information from the minister.
Do you mean on the issue of cost neutrality?
I am talking about what will happen after 2019.
We have until 10 November to agree to the motion. I think that, if the minister could get the relevant information to us in advance of that, it could be circulated to members. However, I will defer to the clerk.
I understand that we must report to the chamber by 10 November. The plan is not to have a meeting next week, as we are away on business. An option would be for the committee to request the information by a particular date. The committee may or may not agree to the motion today. If it does, members could delegate authority to the convener to agree the report, in line with normal practice. There could be an informal opportunity for members to see a draft of the report, including the information that will be provided by the minister, and indicate whether they are content with the reply, and the committee could report to Parliament in those terms. To be clear, if members agree to the motion today, that must be set out in the report; there is no going back on the decision to agree to the motion.
I would be quite happy to follow that approach.
It is important that we send a clear signal that our difficulty is not with the individual, and that there is a compelling need for that individual to be appointed. Previously, we have considered issues around succession planning and retirement—such planning is appropriate in any part of the public sector. I would be very keen that we make this appointment.
I will just point out a matter of process. It is, of course, not this committee but the Parliament that approves the order. In other words, the order’s approval does not happen today.
The committee can approve it today and, pending the information from the minister, Parliament can confirm that approval. Is everyone happy with that?
Members indicated agreement.
We are agreed on our course of action. Do you wish to make any closing remarks, minister?
No.
In that case, the question is, that motion S5M-01715 be agreed to.
Motion agreed to,
That the Justice Committee recommends that the Maximum Number of Judges (Scotland) Order 2016 [draft] be approved.
That concludes consideration of the three affirmative instruments on today’s agenda. The committee’s report will note and confirm the outcome of the debate on the instruments.
Are members content to delegate authority to me as convener to clear the final draft of the report?
Members indicated agreement.
I thank the minister and her officials for attending. We will have a brief suspension.
If I may, convener, it would be helpful if the minister could remain to answer a question that I have on one of the negative instruments that we will deal with under the next agenda item.
The issue was referred to earlier, minister. It is entirely up to you if you want—
Yes, but different officials are involved, and I would need time to consult with them.
If you do not mind then, Mr Stevenson, can we move on? How important is it?
It is only a matter of process.
Well, if it is just a matter of process—
It would be helpful, though, if the Government could indicate what its intentions are in respect of the Delegated Powers and Law Reform Committee’s comments on the errors, which I accept are comparatively minor. That is all there is to it—I am not necessarily looking for an answer now.
The important point is that the second instrument amends all those things and that they were picked up. However, an on-going concern for the committee is that errors persist.
Thank you for your attendance, minister. I suspend the meeting to allow the minister to leave.
10:25 Meeting suspended.10:26 On resuming—
Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2016 (SSI 2016/290)
Civil Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2016 (SSI 2016/317)
Agenda item 5 is consideration of two negative SSIs that relate to civil legal aid fees. I refer the committee to paper 3 and ask for members’ comments.
I was concerned to read in the financial effects section of the policy note on the Civil Legal Aid (Scotland) (Fees) Amendment Regulations that the measure is expected to represent an increase in current costs and that the legal aid bill will go up by 43 per cent. Given the analysis in that section and the intention to simplify matters, we could do with some more information from the minister on why that should be the case.
As I understand them, the regulations take cognisance of the fact that there might be less legal representation and therefore less of a need for legal aid. In that light, the comment in the policy note that
“We would expect any increase in costs to be modest, in the region of £93,000”
seems a little bit strange, and perhaps we can seek some clarification on that. Do members have any further comments?
I am not opposed to seeking more information, but I am not quite sure what information we are going to get that is not before us already.
Despite this relating to simple procedure, under which a person might not need representation—indeed, it encourages more people not to have representation—there will still be an increase in costs. It does not seem to make any sense. Is that your point, Mr Mundell?
Given the challenges that have been posed with regard to the accuracy of the calculations, I am also keen to understand where those numbers have come from and find out more about the expectation that moving away from a block fee to a detailed fee will increase the bill. If going down the detailed fee route is going to increase costs significantly, we should know why that is.
There is always a danger in dealing with percentages. The figure that has been quoted sounds very compelling, but we could put it another way and say that we would be spending £93,000 on getting a simpler procedure. To be honest, it does not seem an issue to me.
We could write to the minister for clarification. In the meantime, are members content that we note the instruments and that, aside from seeking that particular clarification, we have no other recommendation to make on them?
Members indicated agreement.
I suspend the meeting briefly to allow the witnesses for our round-table session to take their places.
10:30 Meeting suspended.10:35 On resuming—
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