Subordinate Legislation
Agenda item 4 is subordinate legislation. Two motions are to be discussed and they will be disposed of separately.
I call the minister to speak to and move motion S1M-1842.
Both sets of regulations derive from the Bail, Judicial Appointments etc (Scotland) Act 2000, which was passed by Parliament last summer. Sections 7 and 9 of that act deal with the way in which part-time sheriffs and justices of the peace could be removed from office if they were found to be unfit for office. The sections have aspects in common, but there are some differences.
The Bail, Judicial Appointments etc (Scotland) Act 2000 created two types of justice and it is important to distinguish between them. A justice of the peace is now either a full justice or a signing justice. A full justice is qualified to undertake any function of a judicial nature. The draft regulations are concerned with full justices and, as well as allowing for their removal, the regulations allow for their functions to be restricted to those of a signing justice. Signing justices are subject to separate removal procedures.
The act makes provision for Scottish ministers to instruct the Lord President of the Court of Session to convene a tribunal to conduct an investigation of a justice. Members will recall that that arrangement was included at the committee's request. The regulations govern the procedure of the tribunal. We expect that the measures would be used rarely.
There may be many reasons why the process is initiated. A judicial office at any level is a unique occupation and its members are expected to maintain high standards in their professional and private lives. It is not therefore possible to specify exactly what circumstances would cause the procedures to be invoked. The procedures are flexible and allow for a range of possible circumstances. However, in appropriate cases, Scottish ministers may ask the Lord President to convene a tribunal to investigate a justice. We shall also write to the justice under investigation to explain the reasons for convening the tribunal.
The tribunal will consist of a sheriff principal, a second person who has been legally qualified for at least 10 years and one other person. The tribunal's role is to carry out an investigation. It would not be a court proceeding. As such, we have left it to the tribunal to decide how best to carry out the investigation. Some safeguards are built into the system—for example, the justice will have the right to give evidence and be represented if he or she wishes.
The tribunal has the power to suspend the justice from office if it sees fit and to end the suspension should it choose to do so. It also has the right to lift temporarily the suspension to allow the justice to complete a case if it feels that that is in the best interests of the parties involved.
Once the investigation is completed, the tribunal will send a draft of its findings on the investigation to the justice, who will have an opportunity to comment. That gives the justice the opportunity to challenge any aspect about which he or she has concerns. When the investigation has been completed, the report of the outcome will be sent to Scottish ministers, indicating whether the tribunal has decided to order the removal of the justice or a reduction in their role to that of signing justice. The report will also indicate the date on which that removal comes into effect.
The key feature of these arrangements is that an independent tribunal—not ministers—will take the decision to remove a justice from office. That is an important safeguard that we are happy to propose in order to protect the independence of the judiciary from political interference.
I move,
That the Justice 1 Committee recommends that the draft Justices of the Peace (Tribunal) (Scotland) Regulations 2001 be approved.
I want to raise two points—one is partly for clarification and the other is partly an observation.
Regulation 7(4) refers to the tribunal sitting in private and to the fact that information must be kept within the tribunal. That is perfectly understandable, but then the minister referred to regulation 10 and to the final report. Once the tribunal has made its decision, that is it—ministers have no right to intervene. Does the individual have the right to appeal against the findings contained in that report? If so, to whom would they appeal, given that their services would have been dispensed with by that point?
The findings of the tribunal appear to be kept secret to the minister, to the members of the tribunal and to the justice who has been affected. If so, no information is released to the public. The decisions of a justice who has been dismissed may well have considerably affected the lives of a number of people within our communities. It seems to me to cut across all the good intentions expressed in documents such as the draft freedom of information (Scotland) bill if no information is to be given to the public about the dismissal of a justice. That is the level of secrecy that we are building into this instrument.
There is a balance to be struck, but the regulations require the investigation to be held in private since the proceedings may well deal with the justice's private life. Therefore, it seems right for the investigation and the tribunal's report to be confidential.
In relation to the justice's input, I repeat that the draft report will be made available to the justice for comment. The ultimate redress available to someone affected by the regulations would be a judicial review of the results of the tribunal's investigation. Therefore, redress exists, although judicial review is a serious option.
Judicial review is assumed, minister; it needs no comment in the instrument.
When people take on responsibilities such as those of a justice, there is a responsibility on all of us to face up to these issues. Dismissal must be for fairly serious offences or misbehaviour. I repeat that a public interest matter could be involved. Rather than waste time and repeat my points again, the same situation arises in the Part-Time Sheriffs (Removal Tribunal) Regulations 2001. It would be even more important to reveal information to the public as far as the removal of a part-time sheriff is concerned.
I have little to add. There is a balance and that balance has been struck in the instrument. There are comparable regulations for judges under the Scotland Act 1998 and for full-time sheriffs under the Sheriff Courts (Scotland) Act 1971. While we are not considering those regulations today, I think that I am right to say that they contain a requirement to report to Parliament. If there is a difference in where the result goes, it lies there, rather than in the public revelation of the decision.
On that basis, I would welcome the minister's including in the statutory instrument the requirement to report to Parliament, particularly on sheriffs.
To do that, the committee would have to reject the instruments that it is considering today. That would be unfortunate. However, perhaps it would not be unreasonable to include a requirement to inform the convener of the Justice 1 Committee or the Justice 2 Committee.
I do not know whether dismissing a justice of the peace merits being reported to Parliament.
I have sympathy with the instrument on justices of the peace, but not with the instrument on part-time sheriffs. However, I do not want to have to repeat my arguments when we discuss another similar instrument. Perhaps the minister could consider such a requirement for sheriffs. I would be more than content with that. Such a provision is necessary and would be appropriate.
I am happy to give that undertaking.
The question is, that motion S1M-1842 be agreed to.
Motion agreed to.
That the Justice 1 Committee recommends that the draft Justices of the Peace (Tribunal) (Scotland) Regulations 2001 be approved.
There is little difference between the Part-Time Sheriffs (Removal Tribunal) Regulations 2001 and the previous regulations, except that these regulations apply to part-time sheriffs. The one key difference is in the tribunal. The first member of the tribunal could be a sheriff principal or a Court of Session judge. In the other regulations, the first member can be only a sheriff principal.
I move,
That the Justice 1 Committee recommends that the draft Part-Time Sheriffs (Removal Tribunal) Regulations 2001 be approved.
The question is, that motion S1M-1841 be agreed to.
Motion agreed to.
I thank the minister for attending. That concludes that agenda item.
Members will notice that a joint meeting with the Justice 2 Committee will take place immediately after this meeting. The next meeting of this committee is on Wednesday 16 May, when we will take evidence on the draft freedom of information bill.
We are required to report to Parliament on the two affirmative instruments. It is normal for such reports to be short and formulaic, and I expect to circulate the report to members by e-mail. I ask them to return comments on it.
Can we write into that report the confirmation of the minister's comment about sheriffs?
We will try to find an appropriate form of words.
Thank you.
Meeting closed at 11:12.