Subordinate Legislation Committee, 06 Jun 2000

Meeting date: Tuesday, June 6, 2000

Official Report 226KB pdf

---

Bail, Judicial Appointments etc (Scotland) Bill

We now return to the Bail, Judicial Appointments etc (Scotland) Bill. Do members have any points to make about chapter 1, on temporary and part-time sheriffs?

It is worth restating the point that you made at the start, convener, that a part-time sheriff is not a sheriff who works part-time. I do not think that that issue was dealt with.

I agree. I have more sympathy with the Executive in regard to chapter 1 of the bill than I have in regard to chapter 2. In chapter 1 there is a clear problem, following the Starrs and Chalmers case, for which we need a quick fix. On chapter 2, the Executive's position seems to be that there is no need for a quick fix. Even though the current procedures are ECHR compatible, the Executive is seeking even wider powers than it is seeking in chapter 1.

I am willing to go along with the Executive on chapter 1. The officials acknowledged that they would look into the issue of consultation, and I was satisfied with their explanation for section 11C(4)(b), which is a catch-all provision; I can live with that. Unless members are otherwise minded, I am happy to accept that, subject to our view that it should be revisited—which may or may not stray into a policy area. I was not particularly worried about chapter 1, but chapter 2 gives cause for concern.

One specific point arising from the excellent legal advice that we have received was that in the Starrs and Chalmers case concern centred not on the basic principle of temporary or part-time sheriffs dealing with cases when permanent sheriffs were unavailable, but on the fact that in Scotland the system had been expanded inappropriately, to the extent that such judges were being used routinely to avoid the need to appoint permanent, full-time sheriffs.

According to the evidence that we have received today, section 11A(5) states that there should be no more than 60 part-time sheriffs. I object to that on two grounds. First, it seems rather arbitrary to say that half the previous number of temporary sheriffs is okay. It does not deal with the objection in principle to temporary sheriffs that was made in the Starrs and Chalmers case. How do we know that 60 is okay? Why should 60 be okay when 120 was not? No explicit justification for that has been given—although, to be fair, that point was not pursued today. Secondly, section 11A(5) goes on to state that the Executive may add to the 60 part-time sheriffs. There may be a limit of 60 for the time being, but it can be altered. That may lead to problems. Our overriding concern is to make this bill ECHR compliant.

There are others around this table who have greater wisdom in legal matters than I have, but it seems to me that the major issue arising from the Starrs and Chalmers case concerns the potential dismissal of sheriffs. The number of part-time sheriffs is irrelevant to that. The important issue is security of tenure over a five-year session. Any proposal to increase the number of sheriffs—correct me if I am wrong—would have to come before the Parliament, so justification for that increase would be required. Presumably any new sheriffs would be appointed under the same terms as the existing sheriffs, so ECHR compatibility would not be an issue. Any decrease would be the result purely of natural wastage rather than of a requirement for some sheriffs to retire early. I do not see that this provision raises any of the issues in the original case that was brought under the ECHR.

I have an open mind about the points that we want to make. The bill is being considered by the Justice and Home Affairs Committee at this very moment.

I am not saying that the figure of 60 breaches the ECHR. I am saying that, given the legal advice that we have received, I am concerned that there is a possibility that it might constitute a breach, because it does not seem to deal in a principled way with part of the decision in the Starrs and Chalmers case—although I appreciate the point that Bristow Muldoon has made about the main issue in that case.

I asked the officials about the figure of 60. They said that they had thought about it.

I would go further than you, convener. The Executive has accepted that this is a rushed bill, for emergency purposes, and that it is not ideal in every respect. We should be very careful about delaying the bill if that means that the gap cannot be filled, unless we think that an important principle is at stake. We have received assurances from the officials that they will consider the issue again, and there is provision for affirmative procedures. We should not stand in the bill's way.

The figure of 60 may lead to difficulties, but I doubt that it would fundamentally undermine this legislation. This is a quick fix. We could mention that we are surprised that a number has been specified, as 60 seems an arbitrary figure, but it is unlikely that it would be contested under the ECHR.

We have raised the issue at this meeting. I guess that the Executive will peruse what has been said and take heed as appropriate. I will not push the point further.

Section 11A(2) indicates that the Executive will comply with procedure on consultation. That is lacking in specifics, but it may answer some of our concerns about section 11A(5). We can understand where the Executive is coming from and appreciate the time pressures under which it is operating—although even before I arrived here a year ago there was talk in the legal fraternity that this disaster was looming. However, apart from the points that have been made, there is nothing in chapter 1 that we want to flag up with the Justice and Home Affairs Committee. That leaves us with chapter 2, on which we may have more to say.

I felt that the answers that were given by the officials were totally incompatible with the opening presentation, which was about putting the procedures set out in the red book into a statutory format. Everybody is in agreement with the aim of taking the appointments away from in-confidence red books and having it out in the open, but that is not being achieved.

Secondly, although again slightly off our remit, the argument as to why councillors should be debarred was not convincing. The Executive had its fingers burned in relation to temporary sheriffs so it may be nervous of court rulings, but I would have thought that it would have wanted to fight for councillors' right to be justices. This is a serious problem for many areas that have relied on councillors and are having to face that group being taken out with no trained people to replace them.

That may be on the policy side, but I feel that this is far too important a matter to be left to subordinate legislation and in the vague way that it has been done.

I agree with you. Without straying on to policy matters, what is before us is section 8, which is such requirements in such circumstances as it wishes to do after such a period of consultation, consulting with whomsoever, when and over what time scale it likes. That might be legitimate if a quick fix was required, but the evidence before us today was quite clear. The Executive does not see it as ECHR incompatible; moreover, the minister indicated at another committee that he is keen for a consultation and review.

I have views about district courts and how they operate, I would be sympathetic to the Scottish Courts Administration taking them over and allowing elected members to remain. That is not for us, but the criterion is whether it is acceptable and it would seem to be unacceptable in any circumstances. When there ain't a problem, why is the Executive proceeding in this way?

I was astonished by the evidence today. I found it utterly unconvincing and I agree with everything that David Mundell said. I would have thought that the qualifications of councillors to serve as justices of the peace at that level of case were excellent. The idea that they could be influenced in the performance of their duties by the fact that fines are a source of revenue to local government is one of the most ludicrous and risible suggestions that I have ever heard. I am surprised that it could be advanced seriously as justification for anything.

The Executive could consider several possible solutions. First, it could make fines a source of revenue of central Government and deal with an adjusting factor to local government in compensation or, second, it could take local government out of the judicial system by making the Scottish Courts Administration responsible for the administration of that level of court.

As was said earlier, I appreciate that the Executive has to have a quick fix to deal with the backlog and the practical problems that face sheriff courts and other courts throughout the country. However, removing elected councillors—many of whom I suspect are doing an excellent job, which I do not think will be done readily by other people—is not a quick fix. It is fixing something that is not broken. It is completely inappropriate and I support the comments made by David Mundell and Bristow Muldoon.

I am sure that local government would not be up in arms about the suggestion that we consider whether it should retain fines—it might be a lot more concerned about several other aspects of its finance. Elected members who have served as JPs for many years have raised this issue with me. The Executive would be wise to reconsider this matter and have discussions with the Convention of Scottish Local Authorities on a solution that would allow elected members to continue to serve as JPs.

Can that be achieved in the time that the Executive wants to bring this bill in?

The Executive did not put a single piece of evidence forward as to why chapter 2 is needed. I accept chapter 1, but in relation to chapter 2 the Executive has expressed confidence that the current district court set-up is ECHR compliant.

A willingness to reach such a solution within a relatively short time scale would be a step forward from where we stand at the moment. The Executive should consider that.

The point has been made that many justices committees do not exactly have huge queues of people wanting to take on the positions. Many

elected local members are well placed to take that role.

Do you accept the Executive's argument that somebody might challenge these decisions and then it might blooter a whole lot of things, perhaps retrospectively? The whole system might be thrown into chaos if someone challenged it.

Fergus Ewing said earlier that, as a solicitor, you would try this, that and the other—as a solicitor, you would try a challenge. I should record that Fergus Ewing shrugged his shoulders.

Solicitors will try any old argument.

Of course, and they sometimes win them.

My understanding is that councillor JPs have been suspended from sitting in cases pending this issue being considered. The period of suspension on them sitting in cases could be continued pending resolution of this issue.

That is my understanding as well. There is no imminent issue.

If the Executive had been less bullish about how confident it was about upholding any ECHR argument, I might have had some sympathy, although I would still have argued that it needed to give some outline as to what the period of consultation may be and who it might consult. There must be something in the Executive's mind; Angus MacKay has already been to the Justice and Home Affairs Committee and said that there would be a review. It must have some view of where it is going. The witnesses said that they felt that everything was ECHR compatible, and if they were challenged, they would have the fallback position of suspension and coming back to this committee. It seems to me that this is premature.

It is also the lowest common denominator. You start to get into the argument that anyone who has an interest in their community is not able to be a justice. They may consider that the local authority or central Government would benefit.

They will get the potholes fixed if they put a big fine down.

Unless Ian Jenkins is otherwise minded—

No. I was just putting the other side of the argument.

We concede on chapter 1, but not on chapter 2.