The next item of business is a debate on motion S4M-11101, in the name of Kenny MacAskill, on the Courts Reform (Scotland) Bill.
I call on the Cabinet Secretary for Justice, Kenny MacAskill, to speak to and move the motion.
16:56
I am delighted to open the debate on the Courts Reform (Scotland) Bill. The bill takes on the majority of Lord Gill’s recommendations from the Scottish civil courts review. I wish to thank all those organisations and individuals who responded to the consultation and who gave evidence to the committee, as well as our justice partners. I would especially like to thank the members and the clerks of the Justice Committee for their work over the past year.
The bill delivers on many of the Scottish civil court review recommendations to improve what Lord Gill described as the “slow, inefficient and expensive” Scottish civil justice system. Lord Gill emphasised at stage 1 that these reforms are “50 years overdue”. The main principles of the bill are that the right cases should be heard in the right courts at the right costs, unnecessary delays to users should be minimised, and the efficiency of the courts should be increased.
The bill will set a new exclusive competence for the sheriff court in order to remove a proportion of cases from the Court of Session so that it can focus on Scotland’s most challenging and complex civil cases and develop the law. A new national specialist personal injury sheriff court will be created, maintaining a centre of expertise where personal injury cases from throughout the country can be heard. Other key planks of the reforms include further specialisation at the shrieval level, a new sheriff appeal court and a new judicial tier in the sheriff court involving summary sheriffs, who will use a new simple procedure, facilitating easier access to justice.
A number of important improvements were made to the bill at stage 2, many of which responded to suggestions raised during the Justice Committee’s stage 1 scrutiny of the bill. In response to an amendment proposed by Sandra White, we agreed to reduce the exclusive competence from the proposed £150,000 to £100,000. Many stakeholders who appeared in front of the Justice Committee believed that the £150,000 figure proposed by Lord Gill was too high, and the committee agreed with that view. The figure of £100,000 that was agreed will help to meet those concerns and will still be able to underpin the reforms by delivering the more efficient and affordable system envisaged by Lord Gill. The Law Society of Scotland called the figure a “significant improvement”.
The committee also heard concerns from some witnesses, including the Scottish Trades Union Congress, that litigants whose cases will now be raised in the new personal injury court rather than in the Court of Session will no longer have to use counsel and will instead have to apply to the sheriff to grant expenses for the use of counsel if they wish it.
Trade unions have always seen the litigation process as important to improving workplace safety, and they have engaged fully and constructively throughout the courts reform debate, all the way back to Lord Gill’s original review. They have shown willingness to support change; they have also expressed legitimate concerns to which we in the Scottish Government have listened.
The trade unions are also very worried about section 69 of the Enterprise and Regulatory Reform Act 2013. They see the dangers in a system in which the cost-recovery regime—perhaps unintentionally—stacks the deck in favour of those with the deepest pockets. If the Scottish Government had the power, we would reverse section 69 tomorrow. We lost that opportunity in the referendum, but perhaps powers over health and safety will be given to this Parliament as part of the promised package of new powers. If that happens, we will act.
In the meantime, we will use the powers that we have to ameliorate the worst consequences of section 69. Therefore, we supported John Finnie’s stage 2 amendments to allow, where appropriate, health and safety cases of any financial value to be heard by the specialist personal injury court, and to put Sheriff Principal Taylor’s recommendation on sanction for counsel on a statutory footing. That test will ensure those who require counsel will have access to it, while leaving the decision whether that is applicable to the person best placed to decide—the sheriff.
It will be for each sheriff to determine if one or more aspect of the Taylor test for sanction is met. However, it would seem to me to be self-evident that, for at least the next few years until the courts have had the chance to properly set the parameters of the law in light of section 69, the sanction test is likely to be met in the majority of work-related personal injury cases. Included in the test is that sheriffs must have regard to the equality of representation of the parties. That will ensure that counsel is available to parties when appropriate.
Scotland is—rightly—proud of the considerable skills and expertise of its independent referral bar. I agree with the learned dean that the bar exists
“to represent those who need skilled representation wherever and whenever they need it.”
I do not see that in any way diminished by the bill’s measures. I agree with the Lord President, who said:
“the opportunity should still exist for the specialist bar to work in the sheriff courts because some significant litigation will be taking place there. It would be helpful and in everyone’s interests if members of the Faculty were given proper opportunities to appear in significant sheriff court actions. I would greatly regret it if they didn’t.”
He also said:
“In my view, owing to the excellence of our independent bar, the Faculty of Advocates will survive these reforms and continue to co-exist with its solicitor colleagues, each complementing the other’s services and skills and maintaining a high standard of advocacy in all of the courts.”
The bill will ensure that litigants can access representation by counsel when they need it. However, sanction for counsel is not the only factor in the important equality of arms issue. Another issue is the procedures used in low-value personal injury cases.
I have said in the past—I will repeat it now—that a small claims type procedure with very limited cost recovery is no place for personal injury cases. There must be fair cost recovery in personal injury cases of any value. I do not see how that could be achieved by a fixed-cost regime. Therefore, I agreed with the Lord President when he recommended a separate table of fees for personal injury cases raised under simple procedure. That, along with other issues relating to the costs and funding of litigation, will be progressed by the Scottish Civil Justice Council in responding to Sheriff Principal Taylor’s recommendations on that issue.
In response to concerns that the test for transfer of complex cases to the higher courts was too strict, we lodged further amendments at stage 2 to ensure that that is not the case. That will ensure that those complex and challenging cases that require the attention of Scotland’s top civil court are able to be heard there, irrespective of the value.
As we have discussed in relation to amendments tabled by Elaine Murray and Graeme Pearson on ensuring that provision has been made for staffing and resources in terms of the new courts established by the bill, those matters are fully catered for.
Lord Gill, Sheriff Principal Stephen and Mr McQueen all emphasised in their evidence to the committee that the sheriff court system will be able to cope. The Lord President said:
“I am absolutely certain that the capacity exists in the sheriff courts to absorb all of the business”.—[Official Report, Justice Committee, 22 April 2014; c 4541.]
A deluge of cases will not descend on the sheriff courts. That will not happen, as Sheriff Principal Stephen pointed out to the committee. The exclusive competence will not be raised until the personal injury court is ready to receive cases, as the Scottish Court Service’s chief executive, Eric McQueen, told the committee. Existing cases will not suddenly be transferred from the Court of Session to the personal injury court; rather, the number of cases will gradually build.
Existing personal injury cases in the Court of Session will see out their lives there. People will be able to raise new personal injury cases in the most appropriate court, whether that is the personal injury court, their local sheriff court or—for cases whose value is more than £100,000—the Court of Session. At an exclusive competence of £100,000, we expect only a 3 per cent rise in the number of civil cases that are raised in local sheriff courts, and we expect the majority to be raised in the new personal injury court.
The Judiciary and Courts (Scotland) Act 2008 compels the Scottish Court Service to prepare and publish a report on the carrying out of its functions each year, which is sent to the Scottish ministers and laid before Parliament.
The bill’s passage is an important milestone in the court reform journey. We will take that journey together with our justice partners to ensure that our court system is fit for purpose in the 21st century. I look forward to hearing members’ views on the bill.
I move,
That the Parliament agrees that the Courts Reform (Scotland) Bill be passed.
17:06
On Radio Scotland this morning, the bill was described as an important reform of the civil justice system, which it is.
The bill has had a long gestation period. In 2007, my good friend Cathy Jamieson, as the then Minister for Justice, invited Lord Gill to review the civil courts, following the publication of a document on civil courts reform by the civil justice advisory group. She asked him to review the provision of civil justice by the courts and to have regard to the cost of litigation, the role of mediation in dispute resolution, the development of modern methods of communication and case management, the specialisation of courts and procedures, and the relationship between the civil and criminal courts. Lord Gill’s final report was presented in October 2009. Five years later, we are at the final stage of the bill’s passage.
Labour does not disagree that the civil courts system requires reform and modernisation or that the cost of litigation is an important issue for parties and the public purse. We welcome the introduction of simple procedure, which we understand will be less confrontational and will involve negotiation, mediation and dispute resolution. We also welcome the appointment of specialist sheriffs and the formation of the specialist personal injury court, although we had reservations about the exclusive competence level.
Our concern has been that the reforms should not be motivated by cost cutting to the extent of being to the court user’s detriment. When individuals take on wealthy and powerful organisations, as with personal injury claims, we want to ensure that the legal representation that is provided to claimants can match that which defenders can buy. We were also concerned that the measures should not place additional pressures on the sheriff courts, which we—and, I am sure, all of us—have been told are overburdened.
We therefore welcomed a number of stage 2 amendments. For example, John Finnie’s amendment to ensure that certain personal injury cases below £5,000 could still be raised in the specialist personal injury court addressed concerns about cases that are of low financial value but which are complex and of considerable interest to those who bring them. John Finnie’s amendment on sanction for counsel, which put Sheriff Principal Taylor’s test on equality of arms in the bill, was a considerable improvement on the bill as it stood previously.
The amended bill now enables the sheriff court and the sheriff appeal court to sanction the employment of counsel when cases are difficult or complex and to prevent any party from gaining an unfair advantage, such as when a company that is defending a claim can afford to employ an advocate or Queen’s counsel, while the claimant cannot afford that.
We would have liked to go further. Graeme Pearson’s amendment 17 today would have introduced a presumption of sanction for counsel when someone had died as a result of a personal injury, in all work-related personal injury cases and in personal injury cases when the damages that were claimed exceeded £20,000. Under the amendment, a sheriff could have directed that that was inappropriate in certain cases, so there was a safeguard.
Despite the fact that that amendment and, indeed, Alison McInnes’s proposed amendments—for which we had considerable sympathy; it was only the fact that they competed with our amendments that prevented us from supporting them—were not passed, the amendments to the bill at stage 2 addressed the significant concerns that were expressed by a range of stakeholders, including the Association of Personal Injury Lawyers and the Scottish Trades Union Congress.
The exclusive competence limit was reduced at stage 2 from £150,000 to £100,000 on an amendment from Sandra White. That was a considerable reduction, which we welcomed. The revised financial memorandum suggests that that would apply to 70 per cent of personal injury cases, which would transfer from the Court of Session to the sheriff court, rather than to 80 per cent of such cases, as was originally envisaged. However, the figure of 80 per cent was hotly disputed by APIL and by the Faculty of Advocates at stage 1. APIL in fact envisaged that 96 per cent of cases would have transferred at the original level. It remains to be seen whether that 70 per cent estimate is correct and is borne out in practice.
Some committee members, myself included, argued for limits of £30,000 and £50,000, which would have been similar to the limits in other parts of the United Kingdom, although England and Wales have recently increased levels to £100,000 for non-personal injury cases. I considered resubmitting an amendment on a lower privative level. However, apart from the fact that it would have been unlikely to succeed, the amendment on sanction for counsel helps to address some of the initial concerns, particularly in light of the amendments from Graeme Pearson and Alison McInnes, which unfortunately were not successful.
We also welcomed the clarification by amendment that the exclusive competence limit applies to the aggregate value of the claim where more than one order is sought.
The committee supported ministerial amendments to sections 88 and 89 on the remit of cases between courts. Those amendments are also an improvement. A sheriff may request that a case below the limit of exclusive competence be remitted to the Court of Session if that sheriff feels that the importance or the difficulty of the case makes that appropriate. The test of exceptional circumstances, which Lord Gill himself felt was too high in the original form of the bill, was also removed. An additional amendment enables a decision by a sheriff not to remit a case to the Court of Session to be appealed to the sheriff appeal court. Those amendments were all welcomed.
As I stated during discussion of my amendments on behalf of Clydeside Action on Asbestos, that organisation was not reassured by Sheriff Principal Taylor’s statements that cases of sufficient complexity would be remitted to the Court of Session. I am not sure what was discussed in the regular meetings that the cabinet secretary promised he was having with Clydeside Action on Asbestos, but it was clearly insufficient to meet its requests. Therefore, it was disappointing that Parliament was not willing to give sufferers from asbestos-related diseases and their families the reassurance that they sought on how they will be supported through the courts system. We witnessed that disappointment when the members of CAA left the public gallery today. They had hoped that Parliament would continue to support them in the way that Parliament has supported them in the past, and I know that they were extremely disappointed.
During the stage 1 debate, I stated that Labour would support the bill at stage 1 but wished to see it amended. It has been amended, although not to the extent that we might have wished. In summing up, I will return to some of our remaining concerns.
As most of the major concerns that were raised with us when the bill was introduced have been addressed to a significant extent, we will support the passage of the bill, in recognition that reform and modernisation of the courts system is necessary. However, I repeat that it is also very important that the resourcing of the reforms is scrutinised and that, as we are not able to do that through my proposed amendments, I hope that we will find other ways of scrutinising how the reforms are resourced as they take effect in future years.
17:14
I welcome the stage 3 debate on the Courts Reform (Scotland) Bill and I thank the Justice Committee clerks for their hard work and the convener, fellow committee members and respondents for their contributions.
It is imperative that the Scottish Parliament seeks to improve not just the quality of justice but, crucially, access to justice. That view formed the foundations of the comprehensive Scottish civil courts review. As the cabinet secretary stated, alarmingly, the review concluded that Scottish civil courts are “failing to deliver justice” because of a system that is “slow, inefficient and expensive.” It is clear that that is an entirely unacceptable situation for the people of Scotland, not least because justice delayed is justice denied. The Scottish Conservatives have therefore supported the bill in principle, as it will put in place long-overdue reforms to Scotland’s courts. However, without doubt, there are areas of concern and provisions that I argue should have been implemented to strengthen and improve the legislation.
For example, as I have already stated, increasing the public’s access to justice is of paramount importance, yet in relation to judicial review it remains unclear whether that particular criterion has been fulfilled. It is far from evident that a three-month time limit and the real prospect of success test will increase access to justice for the public. Amendments in my name sought to clarify the test, which could, not unreasonably, be perceived as subjective. Amendments that were lodged by Alison McInnes would have suitably extended the time limits to ensure that community groups in particular had sufficient time to organise themselves, marshal their arguments and secure the necessary funding. It is a matter of great regret that those amendments, together with those that Elaine Murray lodged on the issue, were voted down.
Furthermore, ensuring that sufficient summary sheriffs are in place will be key to the success of the legislation. Any piecemeal introduction of summary sheriffs by the Government would put that success in jeopardy. That is especially the case given the detrimental impact of court closures on the efficient delivery of justice. As recent figures confirm, those court closures are already adversely affecting the time that it takes to resolve cases. In June this year, only 63 per cent of sheriff and justice of the peace cases were resolved from caution to verdict within the target 26 weeks, which compares with 74 per cent in September 2013. Between 2009 and 2014, the number of sheriff court cases that were seen within the target 26 weeks fell from 75.7 to 70.9 per cent, which is a five-year low. That comes despite a 14 per cent fall in the number of cases heard over the same period.
The full impact of the court closures remains to be seen but, at a time of declining court capacity, it is not in doubt that the bill will further stretch sheriff courts, which already face the prospect of losing nearly 2,000 sitting days. Worse still is the fact that Crown Office and Procurator Fiscal Service staff, victims and witnesses and innocent people who have a case hanging over them are the ones who will suffer further.
The creation of a sheriff appeal court is a sensible provision. However, because the bill differs considerably from the Gill review’s original proposals, the issue was rightly the subject of much debate at stage 2. The sheriff appeal court is central to many of the reforms in the bill and its successful implementation is vital to the success of court reform more generally. However, Lord Gill’s concern that it is
“inappropriate for an appellate court to consist of members of the same level of the judicial hierarchy as those from whom an appeal is marked”
remains, because an amendment to address the issue was unsuccessful.
Court reform is needed and welcome, but the Scottish Government must not conflate the opportunity for change with an opportunity to cut costs. It is therefore entirely right that we keep a watching brief on the provisions to ensure that they increase the efficiency of our courts and genuinely increase access to justice for the public.
We move to the open debate, with speeches of four minutes, please.
17:19
I thank Margaret Mitchell for thanking committee members and me. I am not being frivolous, but I also thank the witnesses, who give up their time to give evidence to committees so often.
My goodness, it seems a long time since we started on the bill. I say to Elaine Murray that we do not need reports to the Parliament to tell us whether legislation is working, because we can have post-legislative scrutiny. We did that today with the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 on grooming. Of course, it is always open to Opposition parties to lodge motions in the Parliament to hold the Government to account.
I join others in welcoming the bill, which modernises the civil court system—in which I used to practise many moons ago—following, in the main, Lord Gill’s review but excluding the review of the children’s hearings system, which is dealt with elsewhere.
One must remember the flexibility of the civil court process in Scotland. Let us take, for example, raising the privative limit from £5,000 to £100,000 in the sheriff court—bearing in mind that that figure is the claim and not necessarily where we end up at the end of a proof or in settlement. It is always open to seek a remit to a higher court, such as the Court of Session. It is open to the sheriff to decide to remit a case, regardless of whether he feels that it is of great complexity in law or in fact, or one of the parties to an action can remit it. Therefore, the limits are not set in stone.
The provision for a specialist personal injury sheriff court is to be welcomed, but litigants have the option of having the case dealt with in their local sheriff court or a specialist sheriff court, presumably on legal advice.
I very much welcome the introduction of summary sheriffs. I was often involved in cases way back in which the sheriff’s time was pretty much wasted with the level of case with which he or she was dealing, which could have been dealt with in a different manner. Without saying that there is a top-level sheriff and a lower-level sheriff, we could certainly use shrieval time to better effect, particularly if we are going to pare off some sheriffs to become specialists in areas of law, which is also to be welcomed.
On the allocation of cases, I say to Margaret Mitchell and others that it is for the sheriff principal to examine a case in the early stages and decide whether it should go to the court to which, on paper, it seems that it should go. It may have to go elsewhere or to a sheriff rather than a summary sheriff.
I certainly welcome equality of arms in the sanction for counsel. In my early, youthful days as a mature student graduating to be a practitioner, I was horrified to find an advocate on the other side, complete with wig and a whole lot of books in front of him. Usually, they were just props; he did not even look at the books, but it looked as if he was going to use them all and it terrified me in those early days. I felt that the client would be asking why they had me and not somebody else wearing a wig.
Equality of arms is terribly important, but it cannot be based on the importance of the case to the client. Every client’s case is important to them. That is why they are standing in court. That is why they have pushed it that far.
I welcome the simple procedure and the £5,000 limit. I welcome the fact that there will be intervention by the sheriff in such cases to move them along where necessary. Again, if a case proves to be complex, it can be remitted to a higher court.
I will quickly say something about asbestosis cases. Members should not misunderstand the fact that I, among others, was not prepared to make them a special case in a special court. I was extremely sympathetic but, when we are making laws, we must consider the principle that is being applied. That principle must be applied across as far as we can see. Worthy though those cases were, I was concerned that, if we made a special case for them and something else came along that also ought to be in a special category, we would have to create that. Where would we end? We get into all kinds of difficulties of judgment.
Therefore, I regret it but, working on principle, it is important that we put cases on the same basis. Indeed, many asbestosis cases will be remitted to the Court of Session if complexity provides for that.
17:24
I am obviously not as well informed as other speakers, who all seem to be either ministers or members of the Justice Committee. I first became interested in the bill as a member of the Finance Committee when it studied the financial memorandum. Subsequently, I listened to the concerns of those who have been affected by workplace accidents and diseases. Therefore, like Elaine Murray, I certainly support the need for reform to the civil courts.
I am grateful that my former colleague Cathy Jamieson commissioned the review some seven years ago. My conclusion, however, is that, in some respects, reform has gone too far and that, in other respects, it is financially problematic.
Access to justice has been a theme of two or three debates this afternoon. I spoke in a couple of them, and I do not want to repeat the detail of what I said. However, I will say that I am still concerned in particular about those who have been affected by workplace accidents and diseases. It is unfortunate that they have not been granted automatic right to counsel, and it is particularly regrettable that those who have been affected by asbestos have not been given the right to have their cases heard in the Court of Session. Those cases are usually very complex, and it might be that most of them end up in the Court of Session, but I think that it would have been better to state that this Parliament regards those affected by asbestos as comprising a special case. It is regrettable that we did not do so today.
In general, as the cabinet secretary said in his speech, because of section 69 of the UK Parliament Enterprise and Regulatory Reform Act 2013, the scales of justice have been tipped against those affected by workplace accidents and diseases. However, the least that we could have done would have been to take every action possible to redress the balance in favour of those victims.
Having said that, some welcome changes were made at stage 2, which made the bill better than it was when it was introduced.
On the financial memorandum, I spoke in the debate in favour of Elaine Murray’s sunrise clause, which I think would have been the best way in which to deal with the financial problems. I still think that no satisfactory answer has been given to the question of the loss of fee income. We can debate whether 70 or 80 per cent of cases are being transferred, but the figure of £1 million lost in fee income is generally accepted.
As I said earlier, the legal aid savings are doubtful, and there is the issue of the increased workload. We are already hearing that it is taking longer to process cases in sheriff courts, partly because of sheriff court closures. Clearly, there will be an increased workload as a consequence, and it is not obvious how that will be managed. Of course, there will be the specialist court, but will two sheriffs be able to cope with all the work of that court, or will other sheriffs have to be deployed as well?
Earlier, we heard that only £10,000 had been set aside for the information technology systems. We were told that other money would be used for that. However, I would like to know when the systems are to be in place. I have been told autumn 2016. I would like that to be confirmed or otherwise in the minister’s summing-up speech.
On the issue of access to justice in relation to environmental matters, the Justice Committee recognised the differences between the Aarhus convention and the scope of judicial review in Scots law. One way of alleviating the decision would have been to extend the time for appeal. That was rejected by the Government. The best solution is the introduction of an environmental tribunal. I am told that that was in the Scottish National Party’s 2011 election manifesto, so I would be interested to know when the tribunal will be set up.
17:28
I thank the members of the legislation team for supporting me in drafting amendments. I also thank the Justice Committee clerks, as ever, and those who took time to give evidence to the committee.
Working in conjunction with the Scottish Civil Justice Council’s modernisation programme, the bill will enable our court structures to undergo significant reform. Noteworthy innovations include the creation of the Sheriff appeal court, summary sheriffs and specialist sheriff courts with Scotland-wide jurisdiction.
It was welcome that we were able to make progress on issues including revising the tests on remitting cases to the Court of Session, and the inclusion of the Taylor test for granting counsel. However, as I said earlier, I remain concerned that, although the Taylor test is a step forward, the ability of parties to be represented by skilled counsel will still be unreasonably restricted. I am therefore disappointed that my amendments 69 to 72 were not agreed to today.
I would like to offer the Minister for Community Safety and Legal Affairs the thanks of my colleagues Liam McArthur and Tavish Scott, who are away on parliamentary business. They welcome her assurances that the gradual abolition of honorary sheriffs will take place in rural and island communities only if the alternatives have been shown to meet the needs of those communities. We are grateful for that reassurance.
In the short time that I have remaining, I would like to remind members about some of the problems that we encountered during the passage of the bill with unsubstantiated and inconsistent proposals.
The bill provided an opportunity to ensure that disputes are heard at the most appropriate level; the increase in the privative jurisdiction of the sheriff court was the most significant change in that respect. However, there was a dearth of evidence to inform our consideration of the correct limit. With the little information that we were given, it was
“unclear how robust the data in question is and the degree to which it can be considered as a representative or reliable sample of cases”.
Those are not my words but those of the Scottish Parliament’s independent information centre. We considered alternative privative jurisdictions and whether the limit should be £30,000, say, or £50,000, but without more information, the committee was forced to take a stab in the dark in setting it at £100,000. That is not good enough and it remains to be seen whether a 1,900 per cent increase will erode access to justice.
On judicial review, I am disappointed that the time period allowed for applications has remained at three months. That will increase the probability of it being needlessly restrictive, and it will unduly erode access to justice, especially for community groups.
Under this SNP Government, sheriff courts in 13 towns across Scotland have closed in the past year, including those in Stonehaven and Arbroath in my North East Scotland region, and four more will follow in January 2015. Those closures appear to be incompatible with the transfer of business that the bill will generate. Aberdeen has already received an influx of business from Stonehaven and is already running close to capacity. Can it cope with more? We have been given scant assurances. I worry, because the cabinet secretary has already confirmed to Parliament that the average time that is taken for the conclusion of summary criminal cases in the sheriff court increased from 139 days in September 2013 to 157 days in June 2014.
Parliament was given the opportunity today by Elaine Murray to receive regular feedback and be assured that the system could manage before key sections of the bill are implemented. I am really disappointed that her proposals were rejected.
Finally, it is worth recalling that at the conclusion of stage 1, members unanimously agreed to the general principles of the bill. However, the main Opposition parties took the rare step of rejecting the financial memorandum amid concerns about its accuracy. I urge ministers to ensure in the future that they develop more coherent and properly evidenced and costed legislation before presenting it to Parliament.
Nonetheless, Scottish Liberal Democrats broadly believe that the package of reforms will better equip our courts to deal with the demands that are placed on them, and that they will improve the experience of service users. We will support the bill today on that basis.
17:32
I join others in thanking my fellow committee members, the clerks and the many organisations and individuals who gave evidence. I also thank the cabinet secretary, the minister and the Scottish Government for listening to a number of concerns that were raised and for accepting a number of amendments, including my own, which was agreed to by the committee.
There is no doubt that reform of the Scottish Court Service is long overdue. As Elaine Murray said, it was first looked at by the Labour Minister for Justice Cathy Jamieson in 2007 who declared:
“The review will have a clear remit to produce recommendations for change to ensure that the civil justice system deals with cases justly, within a reasonable time and”—
most important—
“at a reasonable cost.”
I make that point because Elaine Murray and others raised the issue of cost.
Lord Gill said at the committee at stage 1:
“From the work that has been done by the Scottish Court Service and the Scottish Civil Justice Council, I am absolutely satisfied that the reforms can be adequately funded. They are part of the long-term planning of the Scottish Court Service.”—[Official Report, Justice Committee, 22 April 2014; c 4536.]
I hope that that will allay some of the fears that Elaine Murray and others have raised throughout the debate.
I, along with my colleagues Gil Paterson, Bill Kidd and Stuart McMillan, as well as many other members, have worked alongside Clydeside Action on Asbestos for many years, so I am sorry that the group is not in the gallery to listen to the debate. However, I thank Clydeside Action on Asbestos very much for the work that it has carried out, and for its sheer tenacity. If it was not for that group, I doubt very much whether we would be where we are just now.
I want to highlight some of the issues that have been raised. The committee itself—not just individual members of it—was not persuaded to adopt asbestosis as a particular criterion or a special case. It has been said time and again that all cases that merit counsel will continue to benefit from the expertise of counsel. They are not just my words; they are others’ words, as well. Sheriff Principal Taylor said:
“a complex asbestosis case will probably be remitted to the Court of Session. However, even if it were to remain in the sheriff court, it would almost certainly merit sanction for counsel.”—[Official Report, Justice Committee, 22 April 2014; c 4527.]
That was said over and over again in evidence, and I thought that people from Clydeside Action on Asbestos had accepted the fact that Sheriff Principal Taylor, the cabinet secretary and learned friends from the judiciary had said that asbestosis cases would get counsel—indeed, they did not think at all that such cases would not get counsel. My memory is that the people from Clydeside Action on Asbestos who came to the committee took that on board, but that seems to have changed.
I will go back to speak to Clydeside Action on Asbestos. I do not need to go into the number of issues that it has raised and which the Scottish Government has looked at in terms of legislation—the cabinet secretary talked about them in his opening remarks, which people will be able to read. We have done as much as possible. I thank Clydeside Action on Asbestos, which has worked so diligently alongside MSPs from all political parties and the Government.
The changes that are being introduced by the bill, including those regarding sheriffs principal, should be accepted. They are very good and will make a vast improvement to what we have.
17:36
Civil law is very important in the lives of our citizens, because it deals with their rights and obligations. I will echo the cabinet secretary, who quoted Lord Gill, who said that the present system was “slow, inefficient and expensive.” It was for those reasons that Lord Gill looked at its structure and functions.
On a local level, I was concerned by the issue that my colleague Alison McInnes picked up about temporary sheriffs and the wording that was used in that respect. I do not expect that there will be many changes. The policy memorandum talked about things being “envisaged” and used the phrase “seems doubtful”, so it is important that we keep a watching brief on how our remoter areas are affected.
The intention to have maximum flexibility in deployment is terribly important, and picks up the Justice Committee convener’s point about directing cases to the most appropriate person to deliberate over them.
There are issues around part-time sheriffs, the number of whom will decrease over time. I recently met a part-time sheriff who had been very casually dressed, but had robed up for an emergency sitting. Clearly there is a need for part-time sheriffs.
Throughout the evidence taking we heard competing views about what is important and special. I have to say that I think that every case is important.
Some of the terminology has inadvertently offended people. When we talked about summary and simple procedures, supporters of domestic violence victims saw that—quite wrongly—as a downgrading. I am a keen supporter of domestic violence courts, which I would like to see being extended.
I am also a strong supporter of alternative dispute resolution, although we heard from domestic violence groups that it is inappropriate for domestic violence cases.
There was much discussion of exclusive competence which, following agreement to an amendment from Sandra White, will rise from £5,000 to £100,000. Although some people have criticised that, I think that it shows the worth of scrutiny of the bill.
There has been widespread support for the proposal regarding personal injury courts. The cabinet secretary alluded to the attack on health and safety for workers and workplaces that the UK Government made, and the steps that have been put in the bill to ameliorate that. I would certainly support the removal of section 69 of the Enterprise and Regulatory Reform Act 2013, if we get the opportunity. The role of trade unions in respect of the role of personal injury courts has been vital and they watched very closely how the committee responded to it. I hope that they appreciate that we consider their role to be very important and that we have responded positively with amendments. Workplace incidents are inherently complex because of the nature not only of the specific case but of the relationships that exist in that environment.
The changes in the bill will create a vibrancy throughout the system, as all changes do. With those changes will come new challenges, and the real test will be whether the citizen is properly served by the civil justice system. Only time will tell, and I am sure that we will maintain a watching brief in that respect.
I see that Malcolm Chisholm is back in the chamber, so I will pick up on a point that he made. I refer him to paragraph 38 of the Justice Committee’s stage 1 report, in which we said:
“The Committee is sympathetic to calls for the introduction of an environmental tribunal for Scotland.”
Like Malcolm Chisholm, I hope that the Scottish Government will pick up on that.
17:40
We have had a good debate. The Courts Reform (Scotland) Bill’s provisions represent a radical departure from the status quo, and many members have voiced concerns about some aspects of the legislation. In particular, the absence of empirical evidence to inform certain basic provisions, including the threshold for transferring cases from the Court of Session to the sheriff court, has been less than satisfactory. There is no doubt that the threshold at which those transfers should be pitched has been keenly debated, and that the threshold level has potentially far-reaching consequences for ensuring equality of representation for court users who are involved in litigation.
At present, counsel can be instructed and automatically granted in the Court of Session, which is not the case in the sheriff court. Although the ability to refer complex cases that are below the £100,000 threshold to the Court of Session is provided for in the bill, it is nonetheless important that we keep a watchful eye on the important issue of equality of arms and the associated costs of litigation. The Taylor review’s provision on expenses goes some way towards tackling that issue, and it is true to say that the bill lays the foundation for Sheriff Principal Taylor’s recommendations, which in large part address the impact of litigation expenses on access to justice. The recommendation on damages-based agreements may encourage solicitors and solicitor advocates in the sheriff court to take on the financially riskier cases of people who do not qualify for legal aid but who, equally, cannot privately fund litigation.
In so doing, the recommendation seeks to ensure that access to legal representation is more widely available. In addition, the recommendation on qualified one-way costs shifting seeks to ensure that no one should be deterred from litigation through fear of bankruptcy, which is arguably an injustice in itself.
In short, the Taylor review serves as a reminder that the delivery of justice is predicated on a number of interrelated elements, and not just on courts reform. Those two measures provide an important remedy for litigants who do not pursue genuine cases because of the fear of, and the uncertainties surrounding, potential costs.
It is understood that the Government intends to implement the recommendations incrementally. However, some of the recommendations go some way towards creating a fairer and more accessible justice system, and as such I urge the cabinet secretary to implement them as expediently as possible.
I end on a cautionary note. With court closures still under way, and with so many unknowns, proactive and diligent scrutiny must be maintained on how the bill’s provisions are working in practice. Court closures were decided on without consulting Parliament and, although there is now a commitment to involve members in the decisions, that lack of consultation is an unhappy precedent that should not be repeated.
Perhaps the cabinet secretary can, in his closing remarks, further clarify how the Government intends to increase the burden of cases being heard in the sheriff courts while simultaneously advocating a policy of court closures.
17:44
I, too, start by thanking the clerks and the witnesses. I particularly thank witnesses who took the trouble with people such as me, who do not have a background in the justice system, to illustrate things to us and to take us to courts to ensure that we understood the issues that we were discussing.
In my opening speech, I rehearsed some of the changes that were made to the bill at stage 2 to address stakeholders’ concerns. Like others, however, I repeat that we still have concerns—not so much just about the wording of the bill or the principles behind it, but in particular about whether there is sufficient capacity to adequately resource the changes that it will bring into effect.
As I said, there was significant disagreement about the number of cases that will be transferred from the Court of Session to the sheriff court. I mentioned the difference between the Government’s estimate and the estimates of organisations such as the Association of Personal Injury Lawyers. We will see who is right. We do not know at the moment. If the Association of Personal Injury Lawyers turns out to be right, we will have to ask what will be done to address the situation.
Malcolm Chisholm mentioned the potential loss to the Scottish Court Service of £1 million of fee income. If that comes to pass, issues will also have to be addressed there.
Alison McInnes made points about the transfer of cases between the courts. There is to be one specialist personal injury court sitting in Edinburgh, although there may well be specialist personal injury sheriffs available at other courts. The Government’s figures state that the average annual number of personal injury cases initiated in the Court of Session over the past three years was 1,855. If 70 per cent of those are going to change, it is anticipated that, when the bill is fully implemented, 1,300 personal injury cases a year will transfer to the sheriff court.
I do not think that that includes cases that are below the exclusive competence but are remitted to the Court of Session because of complexity or the need for equality of arms, so the figure might be lower than that, and admittedly many cases will settle before coming to court, as they do in relation to the Court of Session. However, there could be 25 personal injury cases coming in to the new specialist personal injury court each week, and at first that court will have only two specialist sheriffs. That raises concerns as to how cases are to be handled.
The Government’s figures also suggest that at least 227 other cases—commercial, family and ordinary—could be transferred to the sheriff court. Mr MacAskill’s letter in which he describes amendments to the financial memorandum in the light of the stage 2 changes suggests that that figure is an underestimate. We were told that 27 per cent of commercial cases and 25 per cent of ordinary cases had been recorded as having no value, but actually have a “sum in the alternative”—I have absolutely no idea what that might be—which suggests that a portion of those cases will also transfer.
People say that there will not be a tsunami of cases, but it looks as if there is potential for a fair number of cases to come through.
The other side is that the Court of Session stands to lose 42 per cent of its business, which suggests that it could be rather underemployed. I do not know a lot about judges, but I imagine that they have contracts and are still entitled to be paid, so I question what the efficiency savings will be. The Government believes that 85 per cent of commercial cases in the Scottish courts system will remain with the Court of Session and it hopes that additional commercial cases will be attracted to the Scottish system, but I have not seen any evidence for its optimism on that issue.
Malcolm Chisholm made another important point about the Aarhus convention and the need for the introduction of environmental tribunals. That was mentioned when we discussed the Tribunals (Scotland) Bill. At that time, we were informed that the Minister for Environment and Climate Change had advised the Rural Affairs, Climate Change and Environment Committee that he intended to bring in legislation on an environmental tribunal, but things have gone quiet since then. I repeat the question that Malcolm Chisholm posed in his speech. When is that going to happen? It appeared to be a manifesto commitment by the Government and we have had a minister saying that he intends to do it, yet we have less than two years of the current session of Parliament remaining. Perhaps, when we are eventually told about the legislative programme for this year, we will find that there is to be an environmental tribunal. One can maybe hope so.
As far as the burdens on sheriff courts are concerned, we have heard many reassurances from the Lord President, the Scottish Court Service, the sheriffs principal and the Scottish Government that everything is going to be fine on the night—that the resources will be in place and the volume of build-up will be gradual. We all hope that that is true. I am sure that they hope that it is true and that they intend that it will be so, but we also hear from our constituents about congestion in the courts.
We hear about people turning up at court only to be turned away because no sheriff is available to hear their case. We hear about family law cases, which involve the care of children, being dragged out because of a lack of capacity in the courts.
We also know that the process of closing sheriff courts has not been completed. We have been told of delays in that regard. I mentioned the recent report about Dumfries sheriff court, and we know about problems at Hamilton. Phase 3 of the programme, which includes the sheriff courts at Dingwall, Duns, Peebles and Haddington—Haddington is a busy sheriff court—is scheduled for January. Those closures have not yet happened; what pressure will they bring to bear on the courts in Edinburgh, which we know are already very busy?
The Justice Committee has agreed to look at the courts service as part of its scrutiny of the budget this year, which should help to identify some of the problems. However, if serious resourcing issues emerge, the committee’s scrutiny will have come too late to influence the bill.
My amendments on reporting and the commencement of sections 39 and 70 were unsuccessful. Policy is the responsibility of Government; ensuring that adequate resources are available to implement policy decisions is also the responsibility of Government. I am disappointed that Parliament did not take forward those responsibilities. We will support the bill at decision time tonight, but we expect the Government to ensure that its provisions do not cause detriment to court users.
17:51
I thank members for their comments during the debate, most of which were constructive, and I acknowledge the concerns that members expressed. We take due note of those concerns.
Central to the bill are the two important objectives of making justice more accessible to more people and lowering the cost of getting justice. The proposals in the bill will make a tangible and positive difference in both respects.
We received broad support from advocacy and consumer groups, solicitors firms and the judiciary for the concepts and proposals that were set out in the consultation on the bill. Even organisations that expressed concern about certain aspects of the bill, such as the Faculty of Advocates and the STUC, have expressed general support for the bill’s overall aims. I think that such support was reflected in the comments of Opposition spokespeople—in general terms, members support the overall aims of the bill.
I will briefly expand on what the cabinet secretary said about complex cases. The committee heard evidence from a number of stakeholders on the matter. It is important that we get the approach right in the bill, as I think that we have done. We have made improvements to the bill, as a result of debate and discussion, which will ensure that where cases are complex there will be the ability to access appropriate legal representation.
Sufferers of asbestos-related conditions have had to fight all the way, particularly against insurance companies, for proper compensation. The cabinet secretary and this Parliament have been at the forefront of that battle. Given that Sheriff Principal Taylor said that counsel will be available in asbestos cases, whichever court the case is heard in, is there an implicit right to counsel in asbestos cases?
We have given repeated reassurances in respect of asbestos cases. It is our expectation that the overwhelming majority of asbestos cases will continue to have counsel. It is difficult to envisage an asbestos case in which counsel would not be arguing. I will come back to asbestos cases, because the issue is important in the context of this debate.
We want to ensure that there is access to appropriate legal representation in complex cases. However, the changes in the bill reflect an acknowledgement that it is not up to the Government or even parliamentarians to decide what is or is not a complex case. Instead, the bill quite rightly provides the necessary flexibility for the courts to decide in individual cases.
We have enshrined the principle that sheriffs need to have regard to the resources of each of the parties when granting sanction for counsel. I think that we can safely say that the approach enshrines the principles of fairness and equality that Sheriff Principal Taylor espoused when he made his recommendations.
We have acknowledged that we needed to provide more flexibility in relation to the ability to bring cases in the personal injury court, and we have responded to concerns about the tests on remit, to enable genuinely complex cases to be remitted to the higher courts.
I would like to take a few moments to look forward to what we envisage if the bill is successfully passed, as I hope that it will be.
As members will be aware, the bill is one of the key planks in the making justice work programme. We will work together with the Scottish Court Service, the Judicial Office for Scotland, the Scottish Legal Aid Board and other justice partners to ensure that the measures in the bill are implemented in a timely and appropriate fashion. I know that the Lord President is keen to see the reforms that he recommends take shape swiftly. We will work with our partners in monitoring progress to ensure that sufficient resources are in place to deliver the key measures in the bill.
My colleague Gil Paterson raised the issue of asbestos cases. A number of members have, understandably, raised that issue throughout the afternoon. Asbestos cases can be complex, of course. We expect that those cases will continue to be heard in the Court of Session. If not, they would almost certainly merit sanction for counsel; it would be a very unusual asbestos case that would not. The cases already in the Court of Session before the exclusive competence is raised will see out their natural life there. Complex cases will also be able to remitted to the higher courts under the legislation.
The changes that we have made mean that the equality of legal representation of both sides in a dispute will be taken into account by the sheriff. The circumstances that my colleague Christine Grahame described—when she began as a very new lawyer and confronted an advocate on the other side—would be an issue for the sheriff to consider when he was looking at a request for sanction. That will enshrine in law the principles of fairness and equality from Sheriff Principal Taylor’s recommendations.
A number of members have raised issues that come under the category of costs, savings and budget. The committee noted that a substantial budget has not been set aside for courts reform, but the reforms are about a reorganisation of the courts’ existing resources as well as doing things in the most efficient way possible.
I refer to the specific point that Malcolm Chisholm raised. The £10,000 figure in the financial memorandum is to cover updates to existing systems for implementation. However, the member is correct, in that a larger IT project is being undertaken, irrespective of the specific reforms in the bill. That larger project is rightly the responsibility of the Scottish Court Service.
A number of other members have talked about the impact of court closures on various business volumes. The current programme of court closures was approved by Parliament, and it results in the redistribution of 5 per cent of sheriff court business to other courts. As I stated earlier, there will not be a sudden transfer of the existing cases from the Court of Session into the personal injury court; rather, there will be a gradual building of workload.
Eric McQueen from the Scottish Court Service told the committee that the exclusive competence will not be raised until the personal injury court is ready to receive cases. It should be remembered that, overall, the civil case load in Scotland continues to fall. The latest statistics from our civil law statistics in Scotland show a 41 per cent decline in civil actions from 2008-09 to 2012-13.
We have not yet consulted on the specific point that Malcolm Chisholm, John Finnie and Elaine Murray raised on the setting up of an environmental tribunal or court, because we think that it is appropriate that the significant programme of reforms to the civil justice system should come into effect before we consider with stakeholders the need for an environmental court or tribunal. Those reforms include protective expenses orders, the Regulatory Reform (Scotland) Act 2014 and, indeed, the Courts Reform (Scotland) Bill. We wanted to ensure that all that was in place before we went back to stakeholders to talk about what extra might be needed.
We have a role to play in ensuring that Scotland’s court services are first class and efficient and that they provide access to justice for the people of Scotland. I believe that the reforms will significantly improve the administration of justice in our courts, improve the experience for users, and deliver a civil courts system that is fit for the 21st century, not only on paper but in reality.
Lord Gill has stated that our civil courts system is “slow, inefficient and expensive”. He recently reiterated that the reforms are “50 years overdue”. By passing the bill, we will be saying that people should not pay over the odds to litigate their cases; that they should not experience unnecessary delays to their cases; and that they deserve a system that secures a just resolution to their issues in a reasonable timeframe.
For all those reasons, I commend the bill to the Parliament.