Official Report 515KB pdf
Maximum Number of Judges (Scotland) Order 2026 [Draft]
09:32
Item 2 is evidence on a draft affirmative instrument. I welcome Neil Gray, the Cabinet Secretary for Justice; Emma Thomson, a lawyer from the Scottish Government’s legal directorate; and Heather McLean, a senior policy officer from the justice directorate. I thank them all for attending.
I refer members to paper 1 and invite the cabinet secretary to speak to the draft instrument.
Good morning, colleagues, and thank you for having me—this is the first time that I have appeared at the Equalities, Human Rights and Civil Justice Committee. I am grateful for the opportunity to speak to and move the motion on the draft Maximum Number of Judges (Scotland) Order 2026.
The maximum number of judges is set out in section 1(1) of the Court of Session Act 1988. This order in council will increase the maximum number of judges of the Court of Session—also known as senators of the College of Justice—from 36 to 40. Judges of the Court of Session also sit as judges of the High Court of Justiciary.
An increase in the number of judges is required partly due to Lord Colbeck’s appointment as chair of the Sheku Bayoh inquiry. Three further senators are serving on public inquiries and two hold the offices of president of the employment appeal tribunal and president of the Upper Tribunal administrative appeals chamber. Although those individuals remain judges of the Court of Session—and therefore count towards the statutory maximum set out in section 1(1) of the 1988 act—in practical terms, they are undertaking other roles and have limited capacity to carry out Court of Session and High Court business. As a result, there is a reduction in the judicial resources available to support the work of those courts.
Given the significant pressures in the High Court and the Court of Session, the Lord President requested the appointment of an additional senator, to ensure that sufficient resource would be available to manage the impact of another senator being appointed chair of a public inquiry. Although the immediate requirement is for only one additional senator, I agree with the Lord President that there is merit in increasing the statutory maximum to 40. Doing so would provide greater flexibility to respond to future pressures on judicial resources, avoid the need for repeated legislative change and support longer-term workforce planning.
Considering the ongoing pressures across the higher courts and the increasing demands placed on senior judicial office holders, a higher maximum would provide useful headroom. The Lord President has advised that existing temporary judge resources are already being utilised to their full extent. At a time of increasing demand across the High Court, the Court of Session and the sheriff courts, further reliance on temporary judges, who are usually appointed from the pool of sheriffs and sheriffs principal, risks displacing pressures to elsewhere in the system, rather than addressing underlying capacity challenges.
Increasing the maximum number of senators will help to improve the resilience and efficiency of Scotland’s courts, support the timely administration of justice, and strengthen public confidence in the court system.
I am happy to answer colleagues’ questions.
Thank you for outlining that. It is helpful to understand and appreciate the need to create a bit of flexibility, although it is clear from our papers that the draft order concerns one initial additional appointment.
I invite questions from members.
Good morning. You noted the strain on the Court of Session and the added pressure that that is putting on the sheriff courts. What measurable improvement in court capacity and waiting times do you expect from the additional appointment? Is there any evidence to suggest that that first appointment would trigger the other three potential appointments—or creation of posts, I should say?
I appreciate Ms Stevenson’s question, and I understand its basis. As has been well reported, I spent two and a half hours at the Criminal Justice Committee yesterday, part of which involved discussing the pressures on High Court business. The draft order will allow us to sustain the number of judges available to be called for High Court business, and it has the flexibility to allow the Lord President to come forward with a business case, should he wish, for an increase in the number of senators beyond the additional one that we are providing for in the draft legislation that is before you. It would require a business case in order to do that and confirm that.
From January 2027, we will have an increased number of High Court venues and weekly High Court sittings to attempt to address the backlog. Although that gives us the opportunity to address the backlog, the order that is before you gives us the flexibility, should it be needed, to ensure that there are sufficient custodians of that increased business.
Thank you for coming, cabinet secretary. I have two questions. My first relates to the equality impact assessment that was provided in our committee papers, which states that the draft instrument would
“give rise to … positive equality outcomes through increased judicial capacity, improved access to justice and opportunities to support diversity and representation”
in the workforce. Can you outline how the improvement will provide that flexibility, so that we get a more diverse court and more diverse people going into the judicial professions?
That is an important matter. We want to ensure diversity of representation at higher levels across all aspects of the public sector. Appointments as senators are for the Lord President to make—that is a function that he has to dispose of. However, this measure clearly gives us an opportunity to bring greater diversity in representation.
The point that is made in the equality impact assessment about ensuring greater equality across the justice system is partly to do with the point that Ms Stevenson raised and our ability to get through High Court business better and thereby better serve victims through the faster processing and administration of the justice system. However, I absolutely take Ms Bruce’s point: this is an opportunity for greater diversity although, as she will recognise, it is a matter for the Lord President to preside over.
My second question relates to the financial implications. Our papers state that the cost of appointing one additional senator will amount to more than £400,000 per year, although that
“will be offset by the Sheku Bayoh Inquiry”.
Under the draft Scottish statutory instrument that is before us there might be an opportunity to increase the number of senators in the future, which would cost more than £400,000 per judge. If we were at maximum capacity, there could be an increased cost of just under £2 million to that budget. Did you consider that while drafting the legislation?
We did, to an extent, although, as I said in response to Ms Stevenson, there would be a requirement for the Lord President to put forward a business case to begin the financial process to allocate the resources that would be required, and to give proper consideration to the merits of having more than 37 senators. It is for the Lord President to do that, should he feel the need, and the financial considerations that Ms Bruce raises would be considered as part of the business case process.
I understand that three senators are currently working on inquiries or other non-court duties. Is the rise in the number of senators because the courts are busier, because judges are being pulled off the bench, or because of a combination of both? Are there other changes that could be made, beyond simply increasing the number of appointments?
Knowing some of those inquiries, and knowing how important it is that they should be judge led to confirm their independence, I think that it is important that we are open to public inquiries continuing to be led by judges. That is not universally required, and we have some public inquiries that are led by senior independent experts who can come forward and provide leadership support. However, continuing to have our public inquiries led by senior judges gives confidence about the robustness of the process. I am comfortable that the individuals who currently lead those inquiries will ensure that they get answers and provide truth for victims, individuals and society, so that we understand the nature of what is being investigated.
No one else wants to ask a question, so we will move to the formal debate on the instrument. I invite the cabinet secretary to move motion S7M-01122.
Motion moved,
That the Equalities, Human Rights and Civil Justice Committee recommends that the Maximum Number of Judges (Scotland) Order 2026 [draft] be approved.—[Neil Gray]
Motion agreed to.
Do members agree to delegate to me responsibility for the publication of a short factual report on our deliberations on the affirmative instrument?
Members indicated agreement.
That concludes this agenda item. I again thank the cabinet secretary and his officials for their attendance.
09:43
Meeting suspended.
09:47
On resuming—
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