Official Report 226KB pdf
Good morning. We are sorry to have kept the witnesses waiting. Unfortunately, matters dragged on longer than we expected. If you would like to make some preliminary opening remarks, you may do so. You will have been advised of the criteria and purposes of the committee; we do not go into policy, but concern ourselves with efficacy and other such matters.
The memorandum that we have written for the committee sets out the powers contained in the Bail, Judicial Appointments etc (Scotland) Bill to make subordinate legislation. It concerns two of the three components of the bill, which contain proposals on part-time sheriffs in district courts, but not the proposals on bail. If it would help, we will be happy to take a moment to outline exactly what those powers are.
That would be useful.
I shall ask Stuart Foubister to say something about the proposals on part-time sheriffs. After that, Robert Shiels will say something about the provisions on district courts.
Three powers relate to part-time sheriffs. The bill replaces the office of temporary sheriff. In the light of the High Court decision in November last year that a hearing before a temporary sheriff was no longer considered an independent and impartial tribunal under article 6 of the European convention on human rights, we intend to create a new judicial post of part-time sheriff.
Section 7 of the bill inserts new subsection (8A) into section 9 of the District Courts (Scotland) Act 1975. The new subsection will provide that
Thank you. Unless you have anything further to say, it is probably easiest to go through the matter in the terms in which it has been narrated, dealing first with the question of sheriffs.
I do not think that there are huge differences in the manner of appointment. The main difference is that permanent sheriffs can have a royal warrant. The formal responsibility for an appointment, or for recommending an appointment, is placed on the First Minister, who can take it forward to the Queen, as opposed to it being Scottish ministers simply making the appointment.
That is the follow-up point: I can appreciate why, in view of the cases that arose, there is a problem and a crisis that must be addressed. Is there a danger, however, that we are going down one route with part-time sheriffs, which might well be superseded by our route on judicial appointments?
I am not sure that I would refer to a danger of that route being superseded. As you say, we need to do something now for the part-time sheriffs. It is recognised that such a flexible resource is useful and necessary in the short term.
It is conceivable that the proposals in the bill might serve as a building block. It is with that in mind that the first of the powers to make regulations is put in place, to avoid putting something in the bill that might fairly quickly be overtaken by developments.
It sometimes bothers us that too much is left to subordinate legislation. You are asking that this be considered a practical matter, which makes sense in the shorter term.
Very much so.
It is not a principle that you are working on.
It is impossible to say whether, if there were a judicial appointments bill following the consultation exercise, it would be necessary—as the convener was suggesting—to overhaul the appointment procedures altogether. It is conceivable that that might be the case, but it is not possible to say so now because the Executive is only just embarking on the consultation process on judicial appointments. In effect, this process allows the part-time sheriffs to be appointed, by virtue of the bill, but preserves the position to some extent.
With regard to the basis of the ECHR decision, I understand how the hire-and-fire problems that arose are dealt with, but do you feel that the question of impartiality has been fully addressed? It appears that the problems that have been highlighted in relation to the nature of who appoints and the separation of powers—all of which were canvassed—might not be addressed to the same extent here.
We have two decisions to bear in mind—that of the High Court in November, in the Starrs and Chalmers case, and the more recent one concerning temporary judges, in the Clancy v Caird case. Some of the comments that were made in those two decisions point in different directions, but it is fair to say that, even in the case of Starrs and Chalmers, there was not huge criticism of the appointment procedures. The key features were the power to hire and fire and the lack of security. The Executive takes the view that the system that we intend to institute for the appointment of part-time sheriffs is ECHR compatible.
Let us move on to new section 11C, on the removal from office of part-time sheriffs. I understand that it is your intention to consult senior judiciary, but there is no formal requirement.
That is correct.
Are you satisfied that that is adequate as it stands, or should it be beefed up?
That is a good point, which we will want to consider. In this area, we consult the judiciary as a matter of course. Consultation is prescribed only with the Lord President, but in practice it goes wider—it takes in the sheriffs' interests, for example. However, we may want to consider the absence of any requirement for consultation on the face of the statute.
Would that include, under new section 11A(2), making obligatory the discretionary power to issue regulations?
The reason why the current proposals are for that power not to be obligatory is principally one of timing. There is a strong wish to get part-time sheriffs appointed and in place as soon as possible, once the bill has been approved. In practice, the sort of consultation that we are prescribing may be conducted for the first tranche of appointments. However, we would not want to hold them up further by making the regulations before the appointments are made.
I can see the practical problem, but I am thinking of future appointments of part-time sheriffs. As part of the consultation process that is to be followed prior to such appointments being made, should not it be compulsory for the Executive to bring forward regulations setting out the procedure to be followed and those who are to be consulted?
I see where you are coming from. We would not want to put in place a hurdle that would make it impossible to appoint at least some of the new part-time sheriffs in the short term. We would also not want to rush the consultation process or the regulations. The regulations require parliamentary approval, and it will almost certainly not be possible to bring regulations before the Parliament before September. The hope is that, if the bill receives royal assent before the summer recess, some part-time sheriffs can be appointed to assist sheriff courts during the summer vacation.
That is exactly what I am suggesting. I should be pleased if it could be considered.
We will do that.
New section 11C(3) deals with the constitution of the tribunal. New section 11C(4)(a) deals with regulations for investigation and suspension of part-time sheriffs. If we are talking about a tribunal that is constituted to order suspension, but section 11C(4)(b) does not deal with either constitution or suspension, what is it driving at?
There are two elements to it. The first part of the subsection states that the Scottish ministers
Are you satisfied that the reference in new section 11A(5) to the number 60 and the Scottish ministers' apparent ability to change that number will deal with the issues that were raised in the Starrs and Chalmers case? There does not seem to be any qualification of the Executive's ability to increase that number.
The measure is new in so far as under the previous system of temporary sheriffs, there was no numerical control of that sort. In that sense, it is a reaction to the Starrs and Chalmers case that the power to increase the number is subject to parliamentary control through an affirmative resolution. The number may also be decreased, but if the number were to be increased, the Executive would expect to have to make a well-argued case as to why more part-time sheriffs were required. There is certainly no intention to supplant the permanent judiciary.
As you will realise, 60 is slightly less than half the present number of temporary sheriffs; the fact that that number has been set in the bill is a conscious recognition of the fact that the system had become too dependent on temporary sheriffs. The number is a best estimate of the ceiling that we envisage, but there is a desire to keep flexibility. As Stuart Foubister said, that flexibility is in both directions: an increase or a decrease in the number of part-time sheriffs to be appointed at any one time may be proposed. We will get a better idea of how part-time sheriffs will operate once they are up and running. At this stage, we do not want to bind ourselves to a particular figure only to discover that it is too high or too low. As Stuart also said, any proposal to change the number would require an affirmative resolution of the Parliament.
Is the idea behind this also to ensure that the use of part-time sheriffs does not become too embedded in the system? They would be used for run-of-the-mill cases in a way that avoided having to use permanent sheriffs.
It is intended that they should be there for relief—for example, to provide cover during holidays or for sickness.
As there are no further questions on that, we can move on to chapter 2.
There are 32 advisory committees which are under a duty in their district to find suitable candidates from all sections of the community to be justices of the peace. In so doing, the committees may use whatever methods they deem appropriate. The way in which the committees go about the business of finding suitable candidates clearly varies across Scotland. In this part of the bill, what is being sought is a general power to enable us to consult. I have already had meetings with the District Courts Association, and further meetings will be held shortly in relation to the review of the district courts. It is important to see the subsection in the context of that review.
Is not the danger that we would then have to either accept or reject it? I understand why district courts will be reviewed and I can understand that, although the urgency might not be the same as that created by the Starrs and Chalmers judgment, this provision anticipates a problem. However, I am surprised that the minister should undertake consultation at the same time that he is firing through legislation. Usually, one would consult and legislate, not legislate and consult.
There is a short-term problem with the district courts and possible ECHR incompatibilities, which needs to be fixed in legislation. There is also a feeling, which has been around for some time and which Mr MacKay expressed to the Justice and Home Affairs Committee, that there ought to be a wide-ranging review of the district court and its place in the judicial system, which would go beyond ECHR considerations and the scope of the bill, and would be a long-term process.
It is surely unsatisfactory not to include as much as possible in primary legislation, given what Mr Shiels said about removing procedures from the booklet that was marked "in confidence".
We could present a proposal to the committee and Parliament enshrining the present procedures in the form of regulations. We have taken the view that as the procedures have been around for some time and have not been fully in the public domain, they should be the subject of consultation before we produce proposals for regulations.
That reinforces the convener's point about the process.
Can you clarify whether your concern was about the width of the power in the primary legislation or about the fact that we have not specified in our memorandum what we are envisaging?
Both.
It is important to emphasise that the scope of the consultation in new subsection (8A) and of any regulations that are made subsequently relates simply to the procedures for the appointment of justices. There is no doubt that the review of the district courts, which Mr MacKay announced, will go far beyond that, to consider questions about the powers and structures of district courts, and their place in the system. That will be a longer and more wide-ranging review.
Does not this question return to logic and first principles? If we are undertaking a review of district courts, surely the first question is about the philosophy and purpose of district courts. Are they there to reflect local authority boundaries? Are they there to reflect the desires of local authorities through elected members? I understand that historical anomalies mean that the locations of various courts no longer tie in with where people live—I see other members smiling at that.
I understand what you are saying. The point is that the purpose of the bill is to rectify the possible ECHR incompatibilities that we have identified. Certainly, that involves the arrangements for the appointment and removal of justices, which are set out in the bill. Nobody has yet suggested that any of the procedures that are set out in the booklet raise ECHR incompatibilities, but when we are introducing statutory arrangements for the appointment and removal of justices and for statutory security of tenure for justices, it seems undesirable that that statutory edifice should rest on a completely non-statutory appointment process. Therefore, as part of the process of tidying up the possible ECHR incompatibilities surrounding the appointment and removal of justices, it seemed sensible to create a power to present proposals for regulations to Parliament, which would in effect supersede the non-statutory processes. We envisage that they will be presented to Parliament sooner rather than later.
The committee has discussed a form of super-affirmative procedure, which would give more options to parliamentarians. Are you prepared to consider that? This seems to be the legislative equivalent of a blank cheque—you can bring in what you like, when you like, after consulting whom you like over whatever period you like. If there were a super-affirmative procedure, we would not have to take it or leave it, and we would have at least some opportunity to dissect it on the floor of the chamber.
I will comment on the points of concern that you raised earlier and reiterate some of what Colin Miller has said. The review of the district courts is perhaps slightly separate. In putting the procedure in regulations, we wanted to give transparency now to the appointment procedure. It is because we thought that it was appropriate to be as flexible as possible that the power is wide and it is not specified what the procedures or the consultation will be. That has not been finally decided.
I see no difficulty with the committee examining the draft regulations and questioning officials or ministers about them before they are laid before Parliament.
The super-affirmative power is not so much for members of this committee, who would be able to consider draft regulations anyway, as for individual members who represent particular party political or constituency views and who are often left with the option of rejecting or accepting legislation in whole. We have already discussed the issue with regard to the National Parks (Scotland) Bill.
In section 7, the proposed new subsection (8A) says:
Not necessarily.
That is not our intention. There would not be enough time for the consultation process. After the act comes into force, there will be a period—perhaps not very long—in which some appointments will be made under the old system before the regulations are introduced.
Going back to basics, I understand that the Executive accepts that although a specific challenge has not been made under the ECHR to the appointment of justices of the peace, the procedure might fall foul of the ECHR in the same way as the appointment of temporary sheriffs did. Is that correct?
That is not quite our position. There are problems with the provisions for the removal and firing of justices of the peace, which is what the ECHR focused on in the case of temporary sheriffs. Although there was no real criticism of the appointment process, we felt that it was desirable to put some transparency into the system with this bill.
But there are concerns that the appointment and removal of justices of the peace must be ECHR compliant.
Yes. We do not think that the present system is not compatible.
You think that it is compatible.
We think that the present system for appointments is compatible.
However, you have decided that councillors can no longer be full justices as opposed to signing justices.
That is correct.
Other than that, you have not said anything about how justices of the peace will be appointed except that regulations might be made under new subsection (8A).
Yes.
Is that not unacceptably skeletal?
There are two points to make about that. First, as some of the matters in the bill are urgent for various reasons, it was our hope to get the bill on the statute book before the summer recess if possible. With such a time scale, it would simply not be possible to conduct a meaningful consultation exercise and replace a fairly long-standing and detailed informal arrangement with a proper, considered set of regulations. That said, if the bill does not obtain royal assent before the recess and is still before the Parliament in September, we might be able to propose regulations in those two or three months.
I would be the last to argue that the world is ideal. Although I am reassured by your welcome indication that regulations might be introduced in a few months' time, should there not be the same additions to the bill for the appointment of justices of the peace as there are for the appointment of part-time sheriffs under proposed new section 11A(2)? There should be a requirement, not a discretionary power, to consult; and if there is such a requirement, the bill should also specify the persons whom the minister is required to consult.
As we said in the context of part-time sheriffs, we are perfectly prepared to consider urgently the requirement to consult with a view to lodging amendments to the bill. However, we will need to consider whether, in the time available, it is feasible to specify in the bill the parties that should be consulted.
There is a suggestion that the parties to be consulted might include the Lord President. Is there a particular aversion to consulting Parliament?
Do you mean about the particular individuals as opposed to the procedures?
No. I am talking about the criteria that will be applied. In certain parts of Scotland there is a feeling that there has been a geographical bias about the types of people who have become sheriffs. There have been similar concerns among people from ethnic minorities and females. Would it not be desirable to bring Parliament into the consultation to allow such concerns to be reflected through the democratic process?
We will consider such areas when we overhaul the red booklet and introduce proposals for regulations. That sort of detail would be too much to specify in the bill and we would want to consult on the issue before settling on any particular arrangements. Robert, do you have any thoughts on that?
No.
I am a little bit confused about why we are pursuing certain measures, particularly in light of questions about elected members that you and Fergus Ewing raised. If the current system is compliant with the ECHR—as someone pointed out—why should we change it? Although I understand the justification for a consistent appointments system for all justices, I do not understand why elected members should be excluded from it.
Given your concerns about elected members, did you consider other measures that would have allowed them to remain as justices, or was it just decided that they would not be and that was it?
May I clarify one point? Elected members will be subject to the new appointment procedures in so far as they can still be appointed as signing justices, so they will be covered in that sense. However, they will not be eligible to be appointed as full justices.
What is the justification behind that? Surely there are many other people who have political affiliations that may be just as strong as those of elected members. Why are they not subject to the same qualifications?
The rationale underlying the proposals that are set out in the bill concerns the close relationship between councillors, ex officio justices and local authorities, which under present arrangements are also responsible for district courts. In the Executive's view there is a clear risk of incompatibility in those arrangements. That is why the bill provides essentially that councillors and ex officio justices should no longer be able to sit as full justices. In other words, it is proposed that they should not be bench-sitting justices.
I would have thought that given that you have a large number of experienced people as justices, particularly in rural areas—certainly in the south, councillors are prominent—you would have wanted to take whatever steps you could to retain that experience base rather than exclude those people if, as Bristow Muldoon highlighted, there are no political issues.
In terms of Starrs and Chalmers, the point at issue in ECHR terms is an independent and impartial tribunal. We take the view that fine income is a major part of that consideration. It is at least arguable whether a district court in which politicians sit, and which is part and parcel of the local authority, would constitute an impartial and independent tribunal. That gets close to some of the grounds upon which the Starrs and Chalmers case in relation to temporary sheriffs was decided. There are certainly bits of Starrs and Chalmers that people could argue are challenged along those lines.
I want to pursue Bristow Muldoon's point, which has not been answered clearly. Why have councillors been singled out to be excluded from getting on the bench? An MSP recently became a judge; that was not a disqualificatory factor. In any event, surely the ratio decidendi of Starrs was not that the temporary sheriff was an elected politician; it was that the temporary sheriff owed his security of tenure to elected politicians. Surely that is a completely different distinction, yet you have decided to disqualify all councillors, some of whom may be independent councillors and have no party political affiliation at all. Rather than sorting out the mischief that has been identified by Starrs, you have addressed another matter altogether.
Our concern is not with the fact that councillors are political appointees. Our concern is with the financial link local authorities have with district courts, which could lead to the perception—and it is merely perception; nobody is suggesting that there are any difficulties with councillor justices—that there is not an independent and impartial tribunal.
In what context?
In Starrs and Chalmers, the court went out of its way to say that there was no suggestion of any lack of impartiality in relation to temporary sheriffs. The case was decided, and temporary sheriffs were removed, purely on the basis of a possible perception that they were not able to act as an independent and impartial tribunal because of the lack of security of tenure.
I suspect the reality is that there is zilch fine income and that it costs money to recover fines. In my former life in BT I used to be very concerned when justices awarded £2 a week for costs when someone had vandalised a phone booth as it cost the company a lot of money to process it each time the postal order arrived.
I suspect I am in danger of straying into the area of policy rather than subordinate legislation, but the line of argument is interesting. The question of fines seems marginal—most local authorities would regard the income from fines as a peripheral part of their overall income.
On part-time sheriffs, the main emphasis in Starrs and Chalmers was section 11(4) of the Sheriff Courts (Scotland) Act 1971, which allowed ministers to remove a temporary sheriff at will; there was no security of tenure whatsoever. The Clancy v Caird case was about a temporary judge at the Court of Session. The standard period for commissions is three years and reappointment is by the Executive. That passed muster with the court. I do not think that we would read Starrs and Chalmers and Clancy v Caird together as saying that the only acceptable form of tenure is for life. We have proposed security of tenure for five years, subject to the usual ground of dismissal of unfitness for office, so in our view the part-time sheriff system we are instituting addresses the problem of Starrs and Chalmers.
On that issue and that of fines, is the position based on your and Alison Coull's legal advice? What is the legal opinion? To me it seems clear that any sensible person could argue against what is suggested about fines. It is patently ridiculous that councillor justices would impose higher fines to accrue money for their local authority.
It was not necessary to suggest that there was any evidence of bias or partiality on the part of a temporary sheriff to persuade the court that there was an ECHR incompatibility. As we have said, it is not an actual taint that we are addressing in the proposals but the perception of that.
I know it may seem odd: it was examined further in Clancy v Caird. It is not just any perception, but the test of perception that an objective, reasonably informed observer would make. There must still be a fear that if fine income is directed to a local authority there could be a not entirely unreasonable perception that a councillor on the bench could be swayed in that way. There is no suggestion that anyone is acting improperly but, as Colin said, in Starrs and Chalmers there was no suggestion that any temporary sheriff was biased; it was a matter of structures.
To follow what David Mundell said, it is fanciful to suggest that because justices of the peace are elected councillors they are going to impose higher fines to benefit anyone. As a practising solicitor for 20 years that seems to me to be a ludicrous suggestion.
If there is a factor that is impinging on their judicial function—
Why would a well-intentioned citizen who is a justice of the peace not think that too and say, "What about a few extra quid for the local council?"
That argument could apply to any form of fine because ultimately they benefit the revenue as a whole. As Stuart Foubister said, it is a question not of actual or conceivable bias but of whether a reasonable person might reasonably perceive a possibility of bias. Like every other issue in relation to the ECHR, it is a question of risk. None of us can say until the courts have determined it what is or is not a breach of the convention but, not to put too fine a point on it, we have had our fingers burnt on temporary sheriffs.
I am not arguing against that, but I am concerned that a large number of competent people are being ruled out of being justices. That is unfortunate.
I thank the witnesses for coming.