Number of Inner House Judges (Variation) Order 2001 (Draft)
Item 1 is subordinate legislation. The minister will speak to and move motion S1M-1559, then we will take questions.
If the committee will bear with me, I will take a few minutes to explain the purpose of the draft Number of Inner House Judges (Variation) Order 2001. Forgive me if some of this is familiar territory to some members.
The order's purpose is straightforward: it will increase the number of judges in the inner house of the Court of Session from eight to 10. Of course, the Court of Session and the High Court of Justiciary form the supreme courts of Scotland and they deal with civil cases and the more serious criminal cases respectively.
There are 32 judges, all of whom may deal with civil and criminal work and the court is divided into the inner and the outer house. The inner house is the court of appeal and therefore has the more senior group of judges. Judges of the inner house consider appeals against decisions taken by a judge sitting alone, who may be a judge of the outer house, a sheriff of the sheriff court or, in some cases, a justice of the peace in the district court.
The Court of Criminal Appeal is the final arbiter in criminal cases in Scotland, but in civil business there can be appeals from the Court of Session to the House of Lords.
The number of inner house judges has been fixed at eight since 1825. Since then, there have been significant increases in the overall complement of judges, which now stands at a record 32. The number of inner house judges, however, has never been increased and in recent years their work load has grown substantially. To cope with that, the Lord President has been obliged to co-opt to the inner house a number of outer house judges, and some retired and temporary judges have been re-engaged on daily contracts to sit as members of the appeal court bench.
In the most recent full court year—1999-2000—only 55 per cent of judge days in the appeal courts were provided by the more senior inner house judges. The Lord President believes that it is no longer defensible to ask the judges of the outer house to take on so much of the work load that properly should fall to the judges of the inner house. The Minister for Justice and I have considered the case that was made by the Lord President and we are satisfied that the business programme of the inner house justifies an increase from eight to 10 judges. There is a need now, and it would be of considerable help to the Lord President if the powers to recommend two new appointments were available soon.
The Executive is well aware—as is the committee—of the problems that court delays have caused. At sheriff court level, we dealt with the problems that were caused by the suspension of the use of temporary sheriffs towards the end of 1999 by appointing additional permanent sheriffs. The appointment of additional inner house judges to preside in the appeal courts would be another small contribution to our overall aim of getting the courts back on track and ensuring that all court users have ready access to justice.
On that basis, I hope that committee members will find the proposal worth their support.
I move,
That the Justice 2 Committee recommends that the draft Number of Inner House Judges (Variation) Order 2001 be approved.
Thank you. The committee has 90 minutes to debate the order, but I do not expect that we will take that long.
I will begin by asking why there has been no request from Lords President since 1825 to increase the number of inner house judges.
I have asked that question of my officials and have not really received an answer. Since 1825, the Lord President has not seen the need to increase the number of judges, but the inner house has coped with the work load in the ways that I have described—by using outer house judges, for example.
It seems that two things have happened. There is more court work generally; that is demonstrated by the fact that the number of judges has increased to 32, which is a record number. Secondly, it appears that more cases are being appealed. The combination of those two things has led to a work load crisis.
There is really nothing to challenge—the order seems perfectly sensible—but I have a few questions.
Out of interest, how often do the two divisions sit in term-time? How will the order impact on the outer house if judges are transferred from there and the overall number of judges stays the same, although more will be appeal judges?
This may not be relevant, but is any of the increase in the number of judges in recent years a result of court work coming from other parts of the United Kingdom? Obviously, it is good for the Scottish courts if parties are deciding to take their cases in Scotland and there is a knock-on effect on appeals in Scotland.
Not everybody may know that civil cases can be brought in Scotland rather than in other parts of the UK or in Europe, but it is quite important for the standing of Scots law and our courts. I do not know whether that is part of the reason for the increased work load; I am interested to know if indigenous court work is the only reason.
Do you know, from research, whether any specific type of case is being appealed more or any area of law is generating more appeal work? Or are civil cases in general being taken to appeal?
I think that that was four questions.
I do not know how many it was. I just thought that they were interesting, and that we had time to discuss them.
I counted five questions. I will try to answer them.
Both divisions of the court meet pretty well every day to deal with the pressure of business.
Is that on four days—Tuesdays to Fridays?
Yes.
Another question was about pressure on the outer house. To some extent, the proposal is an attempt to regularise the current position, because some 45 per cent of inner house work is carried out by outer house judges.
The increase in the number of judges is at the request and recommendation of the Lord President, who is responsible for allocating business. He feels that that the increase is required to make the court function more as it is meant to and to ensure that the vast majority of days in the inner house are provided by the more senior inner house judges.
If you keep the same number of judges and only regularise those who are co-opted to the inner house—if that is the way it is being put—the pressure on outer house business will remain the same. Has the Lord President discussed with you how that might affect delays in cases, for example, which the public are concerned about?
That is a fair point. If there was pressure on the overall number of judges, the Lord President would raise that with us. As things stand, we have a record number of judges and it appears that the Lord President is satisfied with that for the moment.
Presumably the fact that the judges who dealt with the Lockerbie trial are back will make a difference.
That will certainly make a difference. However, the problem of there not being enough inner house judges predates the Lockerbie trial. The problem is not solely a manifestation of the trial. If it were, that would obviously not be the right reason to make the change, as that situation was temporary.
You also asked about cases from other parts of the UK, and about what type of cases are being appealed more. Cases from other parts of the UK are not a significant factor at the moment. Both civil and criminal cases are being appealed more. Criminal appeals are increasing by something like 20 per cent over a year, which is a big increase. The other area that has contributed to the change in work load, as Christine Grahame probably expects and guessed, is new work relating to the European convention on human rights.
So the effect of the ECHR is already working its way through to the appellate system.
Yes.
Do you have any figures for that?
No, I do not have exact figures.
That question was unfair in a way, but it would be interesting to know the answer.
The numbers are smallish, but there were none previously.
Given the fact that the number of inner house judges has not increased since 1825 and that the order just regularises what has become common practice, I do not think that it is too controversial.
Christine Grahame has already covered a number of the questions that I wanted to ask. However, given that the pressure on the Court of Session has been recognised, does the Executive have any plans to extend a review to a number of other areas of the judicial system in which pressures are becoming clear, for example, the procurator fiscal service?
I know that we are not discussing those other areas of the system today. However, it strikes me that, as we now have a clear idea that some parts of the justice system are creaking at the seams, now might be a good time to review other parts that are creaking equally.
Most of Scott Barrie's points would be more properly put to the Crown Office, which has responsibility for the procurator fiscal service, for example. I am not aware of a particular review having been undertaken, but I think the Crown Office might respond that it is responsible, on a daily basis, for the procurator fiscal service. Given that, the Crown Office has to consider the smooth running of that service, day in, day out, and take whatever measures are necessary to improve the service.
I apologise for being late, and to the minister if my question relates to ground that he has already covered. The minister mentioned briefly the effect of the Lockerbie trial on the number of available judges. I understand that there is to be an appeal, and I read somewhere that not three judges, but five, may be required. Is that correct? If that were the case, surely it would strain the system?
The point made by Ms MacDonald is correct and well made. The saving grace is that, if there is an appeal, it will take a shorter time than the trial did. Margo MacDonald is absolutely right that an appeal would involve five, rather than three, judges. If and when the appeal happens, it would be for the Lord President to consider whether he or Scottish ministers need to take action to cope with the appeal or its impact on the service. The appeal would certainly be a factor, as there would be an impact on the Scottish court service.
Newspaper reports may be pure speculation, but if they are true, the independence of the Scottish judiciary has been much admired throughout the world—except perhaps in Tripoli. If that is the case, and if there are a number of other international tribunals, might a call be made on the Scottish judiciary to help flesh out those tribunals?
I think that that is entirely possible. One aspect of the Lockerbie trial is that it has done great credit to our judicial system. I return to a question that was asked by Christine Grahame, about cases in which there is a choice of jurisdiction. We may well see an increase in the number of cases in which Scotland is chosen as the jurisdiction that people want their case to be tried in. I think that that would apply to civil cases in particular. That remains to be seen. Were either of those things to begin to happen and, as a result, the work load changed or pressures increased, the Lord President would have to consider whether that required an increase in the number of judges, or whatever other action he thought appropriate.
The brief that we have been given describes the Court of Session as Scotland's supreme civil court. Why would the three Lockerbie judges serve in that court? Would not they serve in the High Court of Justiciary?
I am advised that all judges do both.
But for today's purposes, am I correct in saying that we are talking about the Court of Session?
We are talking about the inner house judges who would hear appeals in both types of case. I understand that the only difference is that, in civil cases, the potential exists for a further appeal to the House of Lords, although that is very rare.
The minister mentioned the most recent year's court figures, which show that only 55 per cent of sitting days were provided by judges from the inner house. With the addition of two judges, what will that percentage rise to?
I cannot give you an exact percentage, but I understand that the Lord President is confident that it will be not all of the days, but close to all of them.
Will that make it the exception rather than the rule for outer house judges to be provided?
Yes, that is the case.
My understanding is that the inner house is the civil appeal court and that, when these judges sit in appeals on criminal matters, it is the High Court of Justiciary that is sitting in appeal. Today we are talking about civil cases.
I am concerned about the impact that the proposed change will have on the outer house. In addition to the matter that Margo MacDonald drew to our attention—the possibility of an appeal in the Lockerbie case, which would pull out five judges for I know not how long—we have concerns, which were raised previously by the convener of the former Justice and Home Affairs Committee, about the length of time that reparation actions often take to proceed in the Court of Session.
We know that people are backed up in queues at the outer house and we know why—quite often they settle at the door. That is why it is not necessary to have one judge for each case; five cases are allocated to one judge and proofs sit waiting to be allocated. Nevertheless, a significant number of proofs, which have been set down for many months, may require to be discharged if there is a clash of two cases.
What research is the Executive's justice department doing on the delays in outer house cases and on the time that cases take? If, instead of increasing the overall number of judges, we are simply to have more judges sitting in the appellate courts—although I accept that that may simply reflect the reality of the work load—will the department also consider whether more judges are required? I ask that question notwithstanding the fact that it is for the Lord President to decide. I do not want to malign that gentleman; I am thinking merely of the point of view of the public at large.
Christine Grahame makes a fair point. The statistics are known and the figures to which she refers are recorded and made public. In the end, however, it is for the Lord President to make a recommendation on whether the number of judges needs to be changed. I concede that the point is important, but it is a different point from the one that we are considering today, which concerns the balance between the number of inner and outer house judges.
As far as Christine Grahame's first point is concerned, my understanding is that in both civil and criminal business, the same inner house judges hear the appeals.
Yes, I know that it is the same judges, but they are not called the inner house. The inner house is a civil court of appeal. The same personnel sit on the bench, as I understand it.
I accept the point.
A senior high court judge is on record as saying recently—within the past two weeks, I think—that the High Court system is a shambles. I do not really know what he means by that—
I think we know what "shambles" means.
I think that it was Lord Bonomy. Has there been any response to that?
My understanding is that that specific comment referred to the Crown Office and its preparation of cases and evidence. I make no comment on that, but that was the substance of it.
It might be worth pointing out that I have a meeting with the Lord President early next week. I would be happy to undertake to raise members' questions with him directly, especially the questions on the impact that the change will have on outer house judges and their business. I could also raise the general point about delays.
That would be very useful. We have yet to discuss our forward work programme—we will do that later—but I think it is fair to say that there is a fair level of interest in the High Court. It would be useful if you could relay that. Perhaps we may even pursue a visit to the High Court to follow that up.
If members have no further questions on the order, does the minister want to sum up?
No. Some specific points have been raised and I have undertaken to come back on them. It seems to me that support has been expressed for the proposal and I hope that members will agree the order.
The question is, that motion S1M-1559 be agreed to.
Motion agreed to.
That the Justice 2 Committee recommends that the draft Number of Inner House Judges (Variation) Order 2001 be approved.