Item 2 is the committee's third and final scheduled oral evidence session on the Judiciary and Courts (Scotland) Bill. It gives me great pleasure to welcome Professor Sir David Edward KCMG QC, honorary professor at the University of Edinburgh's school of law. Sir David has studied, taught and written about European institutions. He made a comparative study of the judicial institutions of the European Union and member states. He was called to the bar in 1962 and was appointed Queen's counsel in 1974. He was a judge at the European Court of First Instance from 1989 to 1992, and at the European Court of Justice between 1992 and 2004. In addition to his role at the University of Edinburgh, Sir David sits as a temporary judge in the Court of Session.
Good morning, Sir David, and thanks for the speed with which you responded to our request for help. Section 1 of the bill increases the scope of statutory statements about the independence of the judiciary. However, concern was expressed last week that that provision might restrict the independence of the judiciary by placing a duty only on a certain class of people—it might remove the general by specifying the particular. I think that that is where Lord McCluskey was coming from. I have had a brief look at your comments; could you confirm whether it is your view that we should put a phrase into the bill stating that the common-law position still stands, or that we should accept the bill as introduced on the ground that the common law remains?
My personal view is that the common law remains unless removed. As I have said, it seems to me that you could add the words "without prejudice to", but that might simply cause more problems than it solves.
Would you expand on that?
It would not be certain what exactly it was without prejudice to. It is always easy to put in "without prejudice to", but you must have a clear idea what it is that you are liable to prejudice. That is what I am not clear about.
The example that Lord McCluskey gave was of a developer—he named one, but that is not remotely relevant—who might decide that because section 1 applies only to the First Minister and one or two others, he was under no duty not to talk to a judge. If that were to finish up in court and, ultimately, in the European court, are we clear that the common-law statutory offence would still obtain?
I do not see why it should not. I do not understand the argument.
Thank you for that—that is the major point on that issue.
It is not clear to me that the Parliament can put an obligation on itself. I suppose that it could put an obligation on members of the Parliament.
Would that be a useful thing to do?
Yes. I do not feel strongly about it, but it could be useful. In section 1(1)(d), members of the Parliament are
In fairness, as a self-denying ordinance, most of us are careful about what we say under that heading, tempting as it may be at times not to be careful.
Thank you. I think that that has dealt with the issues.
We move to the role of the Lord President.
Good morning, Sir David. What is your understanding of the role played by the senior judiciary in the governance of the court administration in other jurisdictions?
As I understand it, the Scottish Court Service will have a chief executive and a board. The Lord President and some members of the judiciary will be members of that board, in the same way, although in a different context, as—if I remember rightly—the Lord President of the Court of Session is ex officio a member of the board of trustees of the National Library of Scotland. The judges are not there to perform a judicial function; they are there to be members of the board. The fact that they are judges qualifies them, if you like, to be members of the board; to put it another way, it is considered desirable or even necessary that there should be judges on the board. However, it is confusing to think of them as being there in a judicial capacity.
How does that compare with your experience of other jurisdictions throughout the world?
It is very common for the governing body of organisations that have responsibility for the administration of justice to be wholly or partly composed of judges. In some countries, those bodies are composed wholly of judges. It is important to distinguish what judges do as judges from the administrative functions that they are appointed to do.
As you will be aware, a number of points have been made about judicial appointments, some of which seem a bit contradictory. How do other jurisdictions appoint judges and what is the role of the executive in such appointments?
I have given the clerk a copy of a paper by a professor at Cambridge, which appears on the web, looking broadly at a number of different methods of appointment. In some countries, judges are appointed or co-opted by judges—in other words, the executive has no part in the selection of judges. Some countries, particularly those with experience of dictatorship and a compliant judiciary, regard that as a necessary protection against any sense among the judges that they have to comply with the wishes of those who appoint them. In some countries, the appointment of judges is entirely within the discretion of the executive; there is not even a consultative committee. There is a vast range of possibilities. As I said in the paper that I submitted yesterday, the public seem less interested in how judges are appointed than they are in how judges perform their function.
I was intrigued to read that paper, which referred to the career judge concept. Some have greatness thrust upon them, whereas others take a different course of action. Do you think that it is desirable to have career judges? Is it better to have people who have learned their trade practising at the bar, in some cases for many years?
It is useful to have had experience at the bar, because having a reasonably varied practice is one way in which one begins to understand that there is more than one point of view. Acting for clients in all sorts of situations helps one to understand how people behave. In a system such as ours, in which the credibility of witnesses plays a large part, practice at the bar helps a judge to make that assessment. However, throughout the 14 years in which I served in the European court, I never sat alone and almost never had to hear a witness. I found that having to discuss cases with colleagues and reach a decision that was acceptable to us all—we all had to sign the decision even if we did not ultimately agree with it—was a good discipline and an incentive to judicial modesty, because a judge was not a very public figure. There are perhaps advantages in such a system.
You make interesting points, which will be interesting to follow up in future. However, we must stick to what is on our agenda.
Good morning, Sir David. Is the role of the Scottish ministers in Scottish judicial appointments compatible with the principle of judicial independence? In your initial submission, you commented on ministerial guidance, so it would help us if we could hear your views on the matter.
As I understand it, the consultation paper included a provision for ministers to give guidance to the Judicial Appointments Board for Scotland—I do not remember the precise wording. My concern at that stage was that such guidance could become instructions. Either we have a board or we do not. If we are to have a board, it must be allowed to operate independently, albeit that broad parameters can be set as to how it ought to operate. We must avoid a situation in which guidance becomes instructions.
In general, on the basis of what you know about the bill, are you happy that the proposed statutory Judicial Appointments Board for Scotland will be sufficiently independent of the Government?
As Sandra Day O'Connor said, it is about people, not rules or institutions. If the people behave independently, that is a sufficient guarantee.
I have been contemplating the issue of guidance. One circumstance in which guidance might be needed would be if nobody was sure what a decision of a European court meant at the national level. In that situation, it might be appropriate for the Judicial Appointments Board, or any board, to ask the Government for guidance on how it should proceed, on the basis that the Government, ultimately, foots the bill. Would that be an appropriate circumstance in which guidance might be sought and given?
I assume that, by the European court, you mean the European Court of Human Rights.
I do not mean any particular European court, although I am conscious that there are two. We sometimes have decisions that we are not sure how to interpret and work through. For example, issues of employment law or discrimination might suddenly turn on a decision that comes from outside the United Kingdom.
Let me tell you a story, if I may. One of my colleagues on the Court of First Instance was a member of the panel that was appointed to vet judges of the German Democratic Republic for their suitability to become judges in the united Germany. He had many disappointing experiences but, in interviewing one young judge, he thought that he had found the right person. At the end of the interview, the young judge said, "I suppose that if I'm in difficulty in deciding a case, I can always ring the ministry of justice to find out what I ought to do."
I think that we agree with that.
Sir David, you will be aware that section 14(1) states that the Judicial Appointments Board
On the one hand, it is very important that opportunities should be equal. However, in our system, most judges operate alone. I am not sure that a litigant or accused person of a particular gender or race will feel more comfortable because in another court in another place a person of that gender or race is sitting on the bench when the person who will deal with him or her is not of that gender or race. Therefore, the real issue is equality of opportunity generally, rather than the race, gender or other identity of the person who sits on the bench. I return to the point that what matters to the public is that the person is good at administering justice.
Given that response, is there any need for section 14(1)?
My answer is the answer that was given to me when I discussed the issue recently with a professor down south. She said that these kinds of provisions condition the way people behave and are therefore useful, as long as they are not carried too far.
I will move on to part 4 of the bill and talk about the Scottish Court Service and accountability. I am sure you agree that running our court services efficiently is a key duty of the state. Do you think it appropriate that the function of running court services should be transferred from Scottish ministers to the Scottish Court Service?
There are two aspects to this. First, I have the impression from quite a lot of discussion that there has been unhappiness among the judiciary about the attitude of the Executive to running the courts. An example given to me was that a particular official referred to the judiciary as being simply one of the stakeholders in the justice system. That kind of attitude is dangerous.
I have a further point on that. Things may have changed a bit since, but in your submission to the original consultation on the draft bill you said:
As I understand it, the problem was that a diktat came down from the Treasury about the grading of civil servants. The problem for the clerks of court is that, by the nature of their job, they do not have people working under them, so they were downgraded. Sufficient account was not taken of the fact that they perform a very important function, which needs training and experience to perform it well. They are not just administrative officials of any sort—that was the essential concern. One would need to know how far the Scottish Court Service was able to depart from Treasury requirements, but I imagine that the new Scottish Court Service might be able to overcome the problem.
An administrative body such as the Scottish Court Service will be limited in what it can do by the resources that it is offered. The bill proposes that the budget for the Scottish Court Service will be voted separately from the Scottish budget as a whole. However, ultimately the Scottish Government will still determine how much money will go to the Scottish Court Service—he who pays the piper calls the tune, so to speak. Are you still convinced that what the bill proposes will give the Scottish Court Service the degree of independence from Government that you regard as necessary?
I had considerable experience of such a process in the European Court of Justice, which is given a budget that is approved by the Council of Ministers and the European Parliament on the basis of a recommendation from the European Commission. The court proposes a prospective budget for the following year that is voted by the budgetary authority, and the court must operate within that budget.
I am quite puzzled by those provisions in the bill. On the one hand, the intention is to shift responsibility for management of the courts from the Government to the Lord President, and responsibility for the service's budget will be shifted from the Scottish Government to the Parliament. However, the Scottish Government will still be able to set fees for the courts. To me, the thinking seems to be clouded and I am not sure how that shift will work.
I am not clear about that, either. I think that the issue comes back to the need to avoid a situation in which, having given a body further responsibility, one then takes away that responsibility by giving detailed instructions and specifications as to how its budget is to be applied. If I may say so, that is probably exactly the sort of problem that the committee ought to address.
It does not give me much comfort that you agree with me, but I hope that we can put that issue to the minister, who will give evidence after you.
I am sorry that I cannot be of more help.
I will move on. There is a view that the Lord President should have a degree of accountability to Parliament as a consequence of his additional administrative responsibilities. The paper that you provided raises a number of points about that. Do you have anything to add to what you said in your submission?
I do not think so. We need to be extremely careful about how much we load on to the office of Lord President. As I pointed out in my response to the consultation paper, England does not provide a good parallel because the divisions of the High Court and of the Court of Appeal have their own presidents, whereas, as we are a small jurisdiction, the Lord President is essentially the leading judge as well as the administrator. It is important that, having decided that it should be so, the Parliament and the Government should trust the Lord President to do the job to which he has been appointed. Excessive pressures in the name of accountability might make it extremely difficult to perform that job well in our Scottish context.
Let us return to temporary judges, on which subject we have heard evidence from several folk. If I recall aright, you said in your original submission that all judicial appointments should at least be consistent—to which general principle I am sure that we all want to adhere.
I will mention my own case. If the law had stood as it was when I returned from Luxembourg, I could not have been appointed as a temporary judge. I would have had to apply to be a temporary judge and go through the whole assessment process, and nothing in the bill enables the appointment of a temporary judge other than by that method. Had I been placed in that position, I am not sure that I would have wanted to go through the application and interview process.
I have an observation to make. I agree that, as you have said several times, what members of the public are interested in is how the person who has been appointed as a sheriff or a judge goes about discharging their duties. Whether that sheriff or judge has been appointed on a temporary basis, a part-time basis or a permanent, full-time basis probably does not matter to the people who appear in front of them. Do those people not have a right to expect that, regardless of who is on the bench, they will have gone through the same process to get there?
That argument can be made, but it deals with a different situation from the one that Mr Don mentioned. His point was about whether a person who had already been a judge in another context should be subjected to the same appointment process. You may be right, but that is an argument for not having temporary judges.
Indeed.
We started our questioning with judicial independence, so let us end it on the same subject.
I do not know that I can. There is a slight problem with the phraseology of section 1(2), because it includes the Lord Advocate. Plainly, if the Lord Advocate appears as counsel before the judges, it is perfectly legitimate for him or her to seek to persuade the judges to do something.
We will give that suggestion active consideration.
Meeting suspended.
On resuming—
I welcome the Cabinet Secretary for Justice, Kenny MacAskill; Moira Wilson, the Judiciary and Courts (Scotland) Bill team leader; Alastair Sim, the director of policy in the Scottish Court Service; and Alison Fraser and Catherine Scott, solicitors in the constitutional and civil law division of the Scottish Government.
To what extent does section 1 of the bill simply replicate the provisions of the Constitutional Reform Act 2005? What does providing a statutory guarantee of judicial independence achieve, beyond being merely symbolic?
We believe that it is more than simply symbolic. However, at the outset, I would like to state that symbolism has a place in the courts and should not be underestimated. After all, we often bring people before the courts to show them the full majesty and weight of the law. Having said that, I should say that the proposal is not merely a symbolic gesture. We are committed to a strong, independent judiciary. It is important that Scotland's citizens and all who do business here should be aware of that. We believe that the bill is of constitutional significance and that enshrining in it the principle of judicial independence will help to ensure judicial independence. The bill adds value to the currently accepted common-law position by reiterating it.
As discussions have gone on, we have become increasingly aware of the fact that there is a common-law position. Could you clarify whether the bill adds to the common-law position or just picks out parts of the common-law position, albeit for good—if, perhaps, symbolic—reasons?
To some extent, we are taking a belt-and-braces approach. We accept the common-law position, but there is good reason to enshrine that position. It is accepted by the body politic in the parliamentary chamber that the separation of powers between the legislature, the executive and the judiciary is correct and that their respective roles are to be cherished. One of the ways of doing that is to enshrine the position, which is what the bill does.
Several detailed points have emerged in our evidence, and I would like to go through them.
We are genuinely open-minded on that matter. Our position is that, to some extent, there is a difficulty about whether Parliament can bind itself in a way that is separate from the way in which it is bound by others. We are happy to consider arguments and views around the issue. However, it was felt to be necessary to ensure that the executive did not seek to interfere with the judiciary.
Sir David Edward spoke to us about section 1(2)(a) of the bill, which states:
We would be happy to reflect on that. I see where Sir David Edward is coming from. Such issues take us back to what the Lord President said about trust. We must ensure that Governments—of whatever political hue—and law officers do not seek to interfere. Even in a small jurisdiction such as Scotland, meetings, discussions and interfaces must take place. To some extent, it is a matter of trust and respect. We take the view that things can be construed liberally enough to ensure that there are no difficulties when there are sensible interfaces and discussions, and that the clear view that no attempt should be made to lean on people or influence them inappropriately will not be undermined. However, the Government would be happy to consider a textual amendment to the bill if it was thought that that was needed.
I do not think that it would need to be reflected in statute, but do you envisage the ministerial code being modified to reflect the provision?
We have not considered that, but we would do so if it was thought necessary. The matter would have to be reflected on, probably more by those who deal with the ministerial code than by the justice department. The ministerial code may need to be amended. We are happy to consider the matter and pass it to those who constantly seek to review and update the code.
We proceed to the role of the head of the Scottish judiciary.
Good morning, cabinet secretary. How do you respond to the concern that giving the Lord President formal status as chair of the Scottish Court Service will detract from his judicial function?
I do not think that it will. It is a matter of common sense. It is important that the office of Lord President is not overburdened—we take that as read. Obviously, the Lord President can delegate some of his responsibilities, and he will have an enhanced private office to support him. He will also be able to call on support from the chief executive and staff of the Scottish Court Service.
What consideration has been given to the bill's impact on the role of sheriffs principal?
The bill's impact on sheriffs principal has been considered, and they will have an appropriate position. The Lord President will have the opportunity to intercede at various junctures, but it seems to us that sheriffs principal will operate as they currently do in relation to the sheriff courts and justice of the peace courts in their sheriffdom. However, their role will be subject to directions from the Lord President, who will have the power to step in if major difficulties arise in a sheriffdom. Such powers are currently in the hands of Scottish ministers, which does not seem appropriate to us. It appears to us that the Lord President should ultimately have that pivotal role.
The committee has received representations that the Scottish Land Court should be added to the list of courts that are included in the definition of Scottish courts. Why is it not included, and would the Scottish Government consider including it?
The Scottish Land Court is not included in the definition because it is administered by the Scottish Government rather than by the Scottish Court Service.
Is there not an inconsistency in that? Given the nature of the Scottish Land Court's functions, it might well be argued that it carries the same status as other courts.
That is a valid point. We are going to lay regulations to resolve that anomaly. At present, the Scottish Land Court is not included in the definition, because it is not within the Scottish Court Service's domain, but there are plans to ensure that it is brought into that domain. Once that happens, logic dictates that it should be included in the definition.
We will perhaps consider that at a later stage.
I am sure that the committee will want to look at the issue in detail when we are considering our response to the bill. Will the minister give us more information about the situation and respond to the points that have been made about it in the written submissions that we have received?
I am certainly happy to write to you about the timetable for the regulations, which might well be relevant to what should or should not be in the bill. We are happy to deal with that. The bill contains a regulation-making power, which could be used to include the Scottish Land Court in the definition. Therefore, even if the matter is not dealt with formally in the bill, that power will exist. We can provide you with up-to-date information on where we are in seeking to address the anomalous situation that seems to exist and on the proposed timescale for laying regulations to deal with it.
That would be helpful.
We do not appoint a majority. Clearly, a balance is set and a lay member ultimately presides. This matter has been looked at long and hard by the previous Administration and by us. We have looked at situations in a variety of jurisdictions and there does not seem to be any one particular model. We were persuaded that the current Judicial Appointments Board is working well and it appears to us that there are no real difficulties. Our starting point was: if it ain't broke, why fix it? Therefore, we have not sought to vary the current situation.
We have considered the situations in other jurisdictions, not all of which have lay involvement. If I detect the committee's mood correctly, it is in favour of retaining lay involvement in the board. However, the interesting point about the situation elsewhere is the percentage of lay members. As far as I can ascertain, Scotland is the only place where the lay members are de facto in the majority, because there is a lay chairman. Do you have any comment on that?
My comment is that the Judicial Appointments Board has served us well. The board's view is that it wishes to continue as it is at present—we are persuaded by that. We must take into account the fact that the judiciary serves our communities and that judges do not live in a vacuum. It is important that we have an overall balance. An inbuilt majority would not be in the interests of presentation.
If you and I and Mr Butler were on an interview panel for a consultant orthopaedic surgeon position, would you be comfortable that you had the ability to make a choice?
We must consider the balance in the board. The lay members' role is not to advocate or to argue about people's individual abilities in legal matters, but to take into account a variety of other factors. We do that in an array of other situations. Politicians are not simply judge and jury—certainly not in this jurisdiction and Parliament. That is the appropriate situation. Furthermore, the chairing member of the JAB does not have a casting vote, so there is a balance. The lay members bring something to the board. Our judiciary and our judicial system are not meant to exist in isolation. They exist to represent our communities, so it is appropriate that our communities should have a say.
The funding for the Judicial Appointments Board comes from the Scottish Government. I accept that it is difficult to envisage how we can get round the problem, but that is a bit of an impediment to total independence. The perception could be that the board has to do what the Government tells it, because the Government provides the money.
That is a valid point. There is no way to square that circle without giving the board a blank cheque. However, we have a similar situation with the Crown Office and Procurator Fiscal Service. The Lord Advocate negotiates with the Cabinet Secretary for Finance and Sustainable Growth to ensure that the service is funded appropriately. At the end of the day, we cannot have a mechanism other than negotiation between that body and the Government. Obviously, if rancour developed, as in any situation, there would be a breakdown in trust and we would veer towards difficulties for the body politic. We cannot get away from the point that judicial independence must be paramount but, equally, we must take cognisance of the public purse. Irrespective of who is in government or who the Lord President may be, we must start from a position of trust and respect. If we do that, we will manage to deliver, as we have done in relation to the Lord Advocate and the Crown Office.
On a final minor point, schedule 1 provides that the Scottish ministers may remove a lay member of the Judicial Appointments Board for Scotland from office if the member
I understand that removal would not be obligatory and could simply be considered, but I am happy to reflect on that. A minor road traffic infraction might not justify removal, although there might be circumstances in which it would do so. I understand that there would be flexibility to consider the issue, but we can come back to the committee on that.
Perhaps you will reconsider the provision.
The committee has heard that the point of entry to the judiciary is too late in the career cycle for us effectively to encourage diversity in the legal profession. How will the Government encourage a more diverse range of people to acquire the skills that judges need? How will section 14 help in that regard?
I speak not just as Cabinet Secretary for Justice, but with 20 years' experience as a practising solicitor in Scotland when I say that there has been a significant shift in the diversity of the shrieval and judicial bench, which has enhanced the office and benefited Scottish society. We should acknowledge that appropriate changes have been made.
Do you agree with Sir David Edward that section 14(1) would condition the way in which people behave and will therefore be useful as long as it is not taken too far? I think that is what he said.
Sir David Edward was quite correct. As I said, it is about trust and respect. If trust and respect break down we face an impasse, but if the legislature and—more important in this context—the executive act with trust and respect, we should not have problems. The diversity of the shrieval and judicial bench has changed drastically and appropriately. We should welcome the judiciary's journey in that regard and allow it to continue. We can take the opportunity to provide guidance as and when the legislature in Scotland wants to introduce changes in employment matters that would affect the people who preside over our courts, as much as they would affect people who work elsewhere.
The bill makes no provision for what should happen when Scottish ministers are not minded to accept a recommendation from the Judicial Appointments Board for Scotland. What is the Government's view of the suggestion that the Government should publicly declare its reason for not accepting a recommendation?
As I recall, ministers have to give a reason to the JAB. There might be good reasons why the individual concerned should not be subject to a public spat—constitutional or otherwise. We must remember that three parties would be involved and there might be good reason not to put into the public domain information about an individual. The proposed approach strikes an appropriate balance.
You say that little can be done in legislation, but what process do you envisage would help to avoid the development—or would, at least, end—such a stand-off, so that the matter did not go back and forward between ministers and the Judicial Appointments Board?
It is hard to think of such circumstances. Usually, such matters eventually come down to personalities. It comes back to the issue of trust and respect. There would have to be some discussion about what had brought about the impasse. I would hope that a minister would not interfere without good reason and that those who recommend appointments would not seek to foist an appointment on a Government and ministers unless the person recommended was appropriate and qualified for the job. This is one of the junctures at which we would have to sit down and work it out. Seeking to legislate for such matters could make the situation worse.
Would the best way forward be to employ that most uncommon sense, common sense?
It is about common sense, trust and respect. People should realise that everybody is trying to do the right thing, whether they are coming at it from the point of view of politicians, those who make appointments to the bench or those who sign off the appointments. It comes down to trust and respect. If that breaks down, there is a significant problem that has to be tackled, and people have to get their heads together and discuss it while respecting one another's constitutional independence and respective roles. It is difficult to legislate for a solution to such an impasse because it is a significant impasse for the entire nation, which would have to be worked out. We hope and assume that such situations would not arise but, if they do, they are usually symbolic of a problem with deeper roots than simply that one person likes candidate X and another person does not like candidate X. Such a situation would signify that trust and respect had broken down. Apart from the fact that common sense would have to prevail, I do not think that it would be possible to introduce any arbitration. Common sense would have to prevail. The interests of the nation would see pressure brought to bear on both parties to get their heads together and get the problem sorted.
Before we leave the Judicial Appointments Board, I want to consider an area in which a difficulty could arise. I am sure that it would not, but we must legislate for what might appear to be fairly remote possibilities. As you are aware, the appointment of judges results in a series of interviews being carried out and the candidates being graded in a particular order. The process is time limited and, during the course of the interviewing panel's deliberations, there may be insufficient vacancies to incorporate all the applicants, which would mean starting all over again and re-interviewing people. The candidates are not told the order in which they are ranked. Would not it be more open if they were? There might otherwise be a feeling that once the panel's report had been received by Scottish ministers, the ranking was adjusted according to the currency of the board's deliberations.
To some extent, such matters are best dealt with by the Judicial Appointments Board. There is merit in its reasons for ranking. Situations arise in which there are insufficient vacancies. It is not a matter of having people on a waiting list for ever and ever. Besides that, people's circumstances can change. New people can arrive on the scene who are better qualified—it should not simply be Buggins's turn.
Is the First Minister's role in relation to the appointment of Court of Session judges—and in particular the Lord President and the Lord Justice Clerk—compatible with judicial independence?
Yes. The system that will be created is appropriate. The First Minister must be involved, but we must ensure that he has the appropriate advice—that has been touched on—from specialists who know about the candidates' qualifications and expertise, and lay people should have input. The balance is correct.
Are you satisfied that the appointments system will not favour, or appear to favour, the compliant candidate and will not deter highly qualified candidates who are of independent mind?
I do not think that that will happen. It is important for the First Minister to have a role and the checks and balances are correct. The Lord President and the Lord Justice Clerk are two major offices of state, so it would be absurd for the First Minister not to have some involvement in their appointment. However, we must ensure that the appointments are not political. The proposed methods strike the appropriate balance.
As is right, you hold the Lord President's views in high regard. He expressed reservations to the committee about placing the appointment of temporary judges in the Judicial Appointments Board's remit, because that could hinder the Lord President's ability to respond swiftly to circumstances. How do you respond to that concern?
If temporary judges did not fall within the proposed appointments system, that would be anomalous. If the concern is about the timescale, the time could be truncated—an accelerated procedure must be possible. Ensuring that the systems incur no undue delay is a matter for those who deal with appointments. However, if a temporary judge did not require to go through the same mechanisms as a permanent judge, that would be anomalous.
Is the Government continuing to discuss that issue? Are any changes likely?
We are happy to have discussions, but the bill will establish the principle. If temporary judges were appointed under a different system from permanent judges, that would be anomalous. The systems are better dealt with by the Judicial Appointments Board than by us. Accelerating the process, if need be, is not beyond the board's wisdom.
Why did you stress the importance of the role of the First Minister of the day in the appointment of the Lord President and the Lord Justice Clerk? If the First Minister was not involved in their appointment, how would that affect how we would deliver justice in Scotland?
I stand by what I said. The Lord President and the Lord Justice Clerk are two of the highest offices of state in Scotland and not simply the two highest legal offices. Given that, it appears appropriate to me that the First Minister be involved in the appointments.
Do you accept that, if the First Minister was not involved in that appointment process, that would not affect how justice would be delivered? If the Lord President was appointed independently of the First Minister, that would not undermine the role of the state.
The arrangements are set out in section 95 of the Scotland Act 1998, which provides that it is for the Prime Minister to recommend to the Queen the appointment of persons as Lord President and Lord Justice Clerk. However, the Prime Minister cannot recommend any person who has not been nominated by the First Minister. It seems to me, therefore, that the 1998 act takes a belt-and-braces approach.
I appreciate that. I am just interrogating why you regard it as being crucial that we go forward in the direction that you suggest. Would an independent appointment process that did not involve the First Minister affect the mechanism for delivering justice?
No—but we seek to ensure an appropriate balance. What we propose in the bill will provide such a balance. Given the importance of the offices of the Lord President and the Lord Justice Clerk, and given the significance of the office of the First Minister, the latter should be involved in those judicial appointments. I do not regard that as being irreconcilable with or in conflict with the concept of balance. It appears to me that the proposed methods will provide an appropriate balance whereby any suggestion of partiality by a First Minister would be dealt with by checks and balances. It would be absurd to suggest that the First Minister should not have an input.
Can I move on, minister, to the issue—
Before you do that, I ask Nigel Don to follow up on a point that he has.
I want to return to the appointment of temporary judges. There appear to be two classes of potential candidates. One is those who come up from the ranks of lawyers, and the second is those who have already sat on the bench somewhere and who are retired sheriffs, retired High Court judges or retired European Court judges. It seems to be logical to suggest that the appointment of those who return to the bench as temporary judges might not need to go through the Judicial Appointments Board because they already have a bench licence, to coin a phrase. Do you envisage giving the Lord President scope for reappointing people without having to go through the JAB?
That scope is already in the bill. Signing off such appointments would be a matter for the Judicial Appointments Board, but the bill includes provision for a truncated version of appointment, if I can put it that way. What we are looking at is how the Judicial Appointments Board should be involved—it is correct for it to be so involved. However, I believe that the bill covers such aspects.
We turn to the question of judicial conduct and complaints.
What are your views of the current arrangements for dealing with judicial conduct in the courts?
First, we must put on record that we are well served by our judiciary and that there are few complaints. However, justice needs not only to be done but to be seen to be done, so it seems to me to be appropriate to have a structure that provides a balance that allows complaints to be dealt with but which also seeks to protect the judiciary from vexatious complainers.
Lord McCluskey gave evidence that suggested that he could not envisage a situation in which anyone would have the capability or the qualifications to judge judges independently. I wonder how you will bring forward a plan that will meet Lord McCluskey's concerns.
I do not quite follow the question. It seems to me that there must be the opportunity for some element of review—that is why we have a complaints system. As we have said, the number of complaints that are made is not substantial. The bill provides for a structured process for dealing with complaints while not creating unnecessary bureaucracy. In a constitutional arrangement that respects the principle of judicial independence, managing the conduct of judges is a function that can be undertaken only by the judiciary. The bill sets out a framework of powers, but leaves it to the Lord President to determine the rules that will be published.
I want to take up your point about public confidence. In respect of the policy objectives I agree that the process that will be followed will be made public, but the outcome of any complaints will not be made public. How do you respond to that?
There is good reason for not making public the outcome of complaints. A vexatious complaint can cast a slur on a judge or a sheriff. Such matters must be investigated, however, and the proposed system, which involves a structure that gives the Lord President the appropriate powers, is appropriate. The last thing that we want to do is to provide an opportunity for holders of judicial office to be maligned and disparaged, and for complaints about them to be made public, without providing them with any protection. We need to strike a balance between protecting judges from malicious complaints and ensuring that the public is protected from people who, for whatever reason, fail to deliver on their judicial duties.
I understand that, but when misconduct has been proven, should the evidence of that misconduct not be published—as is the case under the current regime for MSPs—to ensure public confidence?
I am not necessarily persuaded. There might be good reason for not publishing evidence of misconduct. Third parties might be involved. Such evidence might relate to the conduct of a case, with the result that litigants could suffer unduly. There could be impact on appeals. There could be a variety of consequences for people other than the judicial office holder who was under investigation. Litigants in a case that came before the judge could be affected. There is good reason why details of complaints are not published.
I understand that you considered the possibility of the Scottish Public Services Ombudsman's involvement in the process. Why was that discounted?
Given that the SPSO already has a wide remit and that the nature of the proposed position of judicial complaints reviewer is distinct and almost unique, it was felt that it would be better for such matters to be dealt with separately. I have no doubt that, in time to come, my colleague the Cabinet Secretary for Finance and Sustainable Growth might have views on where the reviewer's office should be located and whether there should be any sharing of back-office functions. There is a significant difference between the role of the proposed judicial complaints reviewer and that of the SPSO, so the two offices should be kept separate.
My understanding is that the judicial complaints reviewer will not be involved in considering the rights and wrongs of particular complaints but will investigate only whether the proper procedures were followed. I understand that that is exactly the function that the SPSO carries out at the moment. Why is there a requirement for specialist knowledge, if only the following of procedures is to be interrogated?
That is not the case. We must go back further than that. We approach the issue from the position that, in Scotland, the judiciary has a specific role. That is what we are seeking to enshrine in the bill. We are not simply looking at faulty service by a council or health board, which can be dealt with in other ways and in relation to which there is some element of democratic accountability. What we are dealing with is significantly different. The bill will enshrine the independence of the judiciary in statute, which is why it is inappropriate that complaints should be reviewed by extending the already wide remit of the ombudsman. It is important that the judiciary be independent of any complaints that are reviewed, few as they may be and however important they are. The judiciary should stand alone, because it inhabits an entirely different spectrum from that which involves complaints about the council or the health board.
I appreciate the unique elements that attach to the judiciary. However, if we are willing to take forward a complaints process, is there not an argument that it should stand alone, separate from the judicial process, if it is to be completely independent? Further, if that is the case, surely the ombudsman would provide that opportunity. I am not making a case either way; I am just interrogating the point.
Your argument seems to be that a complaints process should not stand alone, but should be within the remit of the ombudsman. However, we have a separate standards commissioner for MSPs because of our distinctive position. The issue comes back to the starting point, which is that we are enshrining the independence of the judiciary. Therefore, the ombudsman route should not be used. There should be a distinct route.
I am not arguing anything; I am only asking a question.
In paragraph 23 of his written submission, Sir David Edward said:
Of course we have to trust and respect the Lord President. The issue comes back to the fact that justice must not only be done but be seen to be done. If we are arguing that it might be inappropriate to make such matters public, we have to be able to satisfy the public that there is an element of independent scrutiny that provides a satisfactory way of dealing with the issue. We need to be able to satisfy people that, although certain matters are not being published, we are seeking to ensure that the public's legitimate interest is protected.
Who would you see as filling the role of judicial complaints reviewer? Who would be more qualified than the Lord President?
To some extent, we are not talking about reviewing a legal matter; we are talking about someone of fairness, sensibility or whatever reviewing the procedure to ensure that what has been carried out has been carried out fairly and appropriately. It is an administrative rather than a judicial matter.
I still find it a wee bit difficult to follow that argument. I do not see who would be more au fait with the process and procedure that should be followed than the Lord President.
Yes, but the role of the reviewer is to ensure not only that justice is done but that it is seen to be done. They are not there to do anything other than ensure that the public interest is protected. That is perfectly reasonable.
Who would you see as filling such a post?
I do not think that that is a matter for me. We have means of making public appointments and it would be inappropriate for me to comment on that. However, there are sufficient checks and balances in the public appointments process to ensure that whoever was appointed would be a person of sufficient stature, education, intelligence and good conduct to be able to satisfy the public that they are able to act as a check, on the public's behalf, and are capable of following the appropriate procedures.
Obviously, a number of complaints are made each year, but it appears that, rather than being about the conduct of judges, the vast majority of them come from people who are dissatisfied with the outcome of their case. Can you enlighten us about the number of complaints that are made about judicial conduct as opposed to unsatisfactory outcomes?
The information that we have is that approximately 180 complaints are made a year, but we do not have a breakdown of how many of those have foundation and how many are frivolous or vexatious. However, suffice to say, it is accepted that many are entirely without foundation.
So we could be talking about a vacuum of complaints about the conduct of judges. The number of such complaints is probably very small.
I think that we are well served by the judiciary and that only a very small number of complaints are made about it. The committee can rest assured that, although there is a role for a judicial complaints reviewer, we do not foresee them working 24/7. We believe that it is necessary to provide reassurance to the public, but the job will not necessarily be full time. That is not expected. I hope that very few complaints will be made.
Those of us around the table know that complaints multiply when a complaints procedure is set up, which is a problem. Will that happen?
No. Often, the die is cast by the person who is appointed to an office. If that person is prepared to consider frivolous and vexatious complaints, then it will be clear that there is an open door. We have trusted sensible people in other positions to get on with things and they have made it clear at the outset that they are not prepared to consider frivolous or vexatious complaints. Having triggered that message, they can then address legitimate complaints. That takes us back to trusting and respecting the Lord Justice Clerk and the Lord President. We must also trust that whoever we appoint to the office of judicial complaints reviewer will not only be of good character but will be able to separate the wheat from the chaff and treat the chaff appropriately and with speed.
The person should feel no pressing need to overjustify their existence.
Absolutely.
Stuart McMillan has a follow-up question on the removal of sheriffs.
The Sheriffs Association is concerned that section 38 of the bill will reduce the protection that is afforded to sheriffs and that it breaches previous ministerial assurances on the removal of sheriffs from office. How do you respond to that concern, cabinet secretary?
What has been proposed is perfectly reasonable. We are ensuring that such matters will be dealt with to some extent by the Lord President as opposed to by ministers. There is no suggestion that anyone in that office will seek to interfere unduly. It is a matter of balance. I do not see what the holders of shrieval office have to fear.
Our final questions are on the Scottish Court Service.
Good morning, cabinet secretary. What contribution will senior members of the judiciary make to the administration of the SCS, given Lord McCluskey's comment that
We are talking about a matter of trust and respect to some extent. I do not necessarily think that it is true that judges are not good administrators. Common sense is needed to run a judge's office. The right balance must be struck. It is appropriate that the Lord President should chair the SCS board and that it should ultimately fall within his domain as opposed to the Government's domain. As I said, we must trust the holders of that office to get the balance right; they must take responsibility where it is appropriate to do so and allow administrative matters to be dealt with by those who are well qualified to deal with them.
Paragraph 3(1) of schedule 3 to the bill states:
We are talking about matters that are dealt with by the Office of the Commissioner for Public Appointments in Scotland and others. In this country we ensure that public appointments are not a matter of ministerial diktat or fiat. That applies to the SCS as it does to every other body.
Do you intend to consult on the regulations?
Yes, we absolutely do.
There are a number of questions in people's minds about how the new relationships between the SCS, its board, the Scottish ministers and the Parliament will work. The SCS board will be chaired by the Lord President and the majority of its members will come from the judiciary. However, the SCS budget will be agreed by the Parliament and if the SCS fails to do what it should do the Scottish ministers can take control of it. Priorities will be set out in discussion with the Scottish ministers, and the SCS will be required to have regard to guidance from ministers. How do you envisage that the new relationships will develop?
Your question brings me back to what I said about trust and respect. Although we have a separation of powers we must acknowledge that we cannot operate in silos. There must be an interface, which might relate to how money is apportioned to the SCS, or decisions of the legislature on employment law for example.
Currently, if I wanted information on the SCS I could ask a parliamentary question, write to you or ask you a question during a Justice Committee meeting. How will the board of the SCS be accountable to the Parliament? The Lord President told us:
Your question raises several issues. The SCS board will be accountable in a variety of ways. The chief executive is the accountable officer and is responsible for the SCS's proper and efficient use of resources—the chief executive is a compellable witness. The SCS will be required to lay a report before the Parliament every year and controversial decisions would require parliamentary approval of a statutory instrument. If there were serious concerns about apparent failure in the SCS, the Scottish ministers could make an order that would be subject to affirmative procedure, thereby ensuring parliamentary accountability.
I have concerns about part 4, on the Scottish Court Service. In answer to Margaret Smith, you talked about trust and respect from people who expect the Government to have responsibility for running our court services, which is an important duty of the state. The bill establishes the body corporate and transfers responsibility to it, yet the SCS must provide plans to the Government that can be subject to modification and agreement, follow guidance that the Scottish ministers issue and provide information to ministers. What benefit will be gained from shifting responsibility from the Scottish ministers to a body corporate?
It is much better for the SCS to be within the judicial rather than the executive prong of the trident. As I said, we do not live in silos and interfaces must occur, as the convener said, on the apportionment of funding, for example. However, the SCS should be dealt with as part of the judiciary rather than as part of the Government. If Parliament decided on employment legislation in relation to race, gender or ethnicity, for example, it would be appropriate that we could give the SCS guidance on that. It would be ridiculous if we could not pass legislation that had an impact on such matters, but it would be inappropriate to impose on the SCS decisions about how it operated. The aim is to protect the judiciary's independent role in a democracy but to allow for a clear interface when aspects are appropriately dealt with by the executive or the legislature. There are interfaces on some matters and there is clear separation on others. Such issues concern balance and, ultimately, trust and respect, but we must enshrine some fundamentals.
I also have difficulty in understanding why the SCS's budget will be transferred out of the Scottish budget, so that the Parliament will vote separately on it. You know as well as I do how little parliamentary committees can change the shape of a budget. The budget for the SCS will be presented to the Parliament and we will be expected to vote on and take responsibility for it, yet the Scottish ministers will have responsibility for setting court fees. What is the reasoning behind retaining that ministerial responsibility rather than devolving it to the body corporate?
On some matters relating to finance, we clearly cannot be expected to give a blank cheque. The matters come down to constitutional negotiations, as happens with the Crown Office and Procurator Fiscal Service, which I mentioned. It is important that we have the opportunity for Government involvement. For example, we retain at Government level certain matters to do with legal aid, which provides access to the judiciary in many ways. It would be absurd to suggest that legal aid should become the fiefdom of the judiciary.
If you believe that it would be absurd for the financing of legal aid to become the responsibility of the judiciary, surely it is absurd for the running of our independent court service to become the responsibility of the judiciary.
I do not believe so.
Can you explain the difference between legal aid and the court service?
We are talking about creating a pyramid structure, with the Lord President sitting at the pinnacle. The court system goes from the bottom up to the very top, but there is clearly ebb and flow. We must allow the judiciary to get on with training and appraisal, if it wishes to go down that route. It is appropriate that the judiciary should be in charge of such matters and should not be subject to interference by the legislature or the executive. Equally, other matters relate to public policy, such as access to legal services, as I said. I do not see a difficulty with that. I do not know whether the member is suggesting that the judiciary should take control of legal aid fees. The bill provides an appropriate balance, by protecting the independence of the judiciary while ensuring that matters that relate to public policy are within the domain of the Parliament or legislature, or of the executive or Government.
I remind the minister that he introduced the issue of legal aid and said that it would be absurd to move the responsibility for decisions on its financing.
We need a default position in case anything fundamentally untoward arises. The provision in the bill is to an extent the nuclear option—we trust that we would never have to press it, but it would be negligent of any Government of whatever political hue not to have the opportunity to interfere if something substantially untoward happened. It is considered that the power would be used in only the most extreme circumstances.
Has such a power been incorporated in previous legislation?
We can get back to you on that, but I imagine that there are previous instances in which Governments have sought to become the operator of last resort. For example, if a railway line has been privatised, what happens when the private sector fails to deliver? The operator of last resort is the Government, which picks up the tab. Clearly, if the court service fails to deliver, for whatever underlying reason, the operator of last resort will have to be the Government. We cannot not have a court service. We do not anticipate that the power will ever need to be used, but we must work on the basis that if something fundamentally untoward happens, the Government would have to step in and would not allow the system to melt down.
Does the Government intend to privatise the service? It seems as though it is being set off to the side in a nice package.
That question is absurd. We are enshrining the independence of the judiciary, not privatising it.
I am talking about the Scottish Court Service.
We are not seeking to make it a corporate body or to have shares in it. There is no power for the Lord President to float the service on the stock market. Frankly, I do not understand the nature of the question; I do not think that it is capable of being answered.
We will see.
Indeed, we shall.
Meeting suspended.
On resuming—