Civil Justice
The next item of business is a debate on motion S3M-4987, in the name of Fergus Ewing, on civil justice. I call Kenny MacAskill to speak to and move the motion.
Scots law and the Scottish courts have served us well in civil matters for many years but, last Wednesday, the Lord Justice Clerk, Lord Gill, presented me with the "Report of the Scottish Civil Courts Review", which is a hard-hitting report and the first system-wide review in modern times. I begin by thanking Lord Gill, his colleagues and his staff team for all their work. I also thank Cathy Jamieson for her foresight in commissioning the review during her tenure as Minister for Justice.
In his opening paragraphs Lord Gill pulls no punches. He says:
"The basic structure of civil jurisdictions in the Scottish courts remains much as it was in the late nineteenth century".
He continues:
"changes in the social and economic life of Scotland … have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue."
Those conclusions are unavoidable. Our civil courts now operate in a rights-based, property-owning, consumer-oriented, insurance-reliant society of a sort that would have been unrecognisable a century ago. A reliance on ad hoc reforms has delivered a system of civil justice that is unfit for today's purposes. Lord Gill states:
"The practitioners of 100 years ago would have little difficulty in picking up the threads"
of today's courts. The severe summary is that the structure is "seriously failing the nation."
Lord Gill has diagnosed failures in efficiency, economy and expedition; his is a diagnosis of notorious and sometimes scandalous delays that ill-serve our people. His proposals for change include that there should be stricter management of cases, with sanctions for breach of the rules; that there should be a major transfer of jurisdiction to the sheriff courts, with cases that are worth less than £150,000 taken out of the Court of Session; that most appeals should be handled in the sheriff courts from where they sprang, with a requirement for inner house permissions; and that the simplest cases should be dealt with under a new procedure before a district judge. There is also a host of proposed technical improvements. The report has been broadly welcomed by all those who believe that the people of Scotland deserve an accessible system of civil justice that delivers fairly, economically and promptly.
I cannot address all Lord Gill's recommendations today. His report extends to 700 pages, with evidence presented in 11 informative annexes, which detail the disproportionate cost of litigation, excessive delays and volumes of business, as well as lessons that are to be learned from other jurisdictions. I broadly welcome the recommendations and accept the twin thrusts of jurisdictional adjustment and procedural change. Cases must be dealt with at the level that is appropriate for their importance and complexity, and the courts should ensure that cases are properly managed, with an end to drift and repeated procedural hearings. Reforms in the commercial court and summary criminal cases have shown that that can be done and it must now be done throughout the system.
It is absurd that more than half the cases that come before the Court of Session cost more to sue than the sum being sued for: an average of 222 per cent more in the lowest-value cases.
It is increasingly odd that the average time for a case to reach its conclusion continues to grow. Without access to today's technology, the Roe v Wade decision was issued in three months, including holidays, and the Nuremberg trials were concluded in 10 months. Our delays are not justified. They delay justice and they contribute to Scottish businesses choosing other jurisdictions for their litigation. So we should all agree on the needs driving reform: modernisation, a change of culture and a whole-system approach.
We will carefully examine the detail of the specific proposals. Some could be implemented soon, others will require careful costing and a different public finance climate. Some solutions are at the disposal of the court, others are for the Government and others still are shared, but that does not diminish the urgency of our moving forward in this general direction. I therefore invite the Opposition spokespeople to reach early agreement with me on which recommended changes can be rapidly progressed.
The cabinet secretary will be aware that Lord Gill said specifically that his report was not to be cherry picked and should be dealt with as a whole. I do not necessarily agree with that, but I would appreciate the cabinet secretary's view.
I accept both Lord Gill's direction and Robert Brown's comment. Obviously, certain matters will require primary legislation, but others can be dealt with more expeditiously. I do not want us to go all round the houses and wait until every matter has been fully canvassed, and experience procedural delays. I make this offer: if each and every one of us can agree on action that will advance civil justice, let us act. If we cannot agree, we will not seek to proceed but, as I said, where we can make progress for goodness' sake let us make progress. Where we require to deliberate, we are happy to do so.
I will press the minister further. Has he identified areas where we might start?
Some areas will not be within the Government's jurisdiction; they will not require primary legislation but will be within, for example, the domain of the Court of Session Rules Council and a variety of other bodies.
If we can agree politically, and if we accept that we might have to wait some time for primary legislation, we should try to make progress where we can. If the matter is one on which the Government or our legislature has an input, we should press on. If it is a case of encouraging others, either within the rules council or elsewhere, let us do that. Margo MacDonald is correct to ask her question and I agree with Mr Brown. The package needs to be viewed in its totality. Equally, we do not have to wait until every t has been crossed and i dotted before we deliver change. If we can, let us resolve issues while we work towards the general thrust of the recommendations.
Is one of the issues on which the cabinet secretary thinks we can all reach agreement the introduction of the McKenzie friend process?
I am more than happy to consider it. Lord Gill commented on that process, as did those involved in providing support through citizens advice bureaux and others. I am more than happy to meet Mr Whitton or his front-bench colleagues to discuss it because we are genuinely open to ideas. We do not insist on any formula. As I said, if we can agree on changes that are within our control, we will seek to introduce them. If changes are within the domain of others we will encourage them to act, if that is Parliament's view. Other matters will require to await the outcome of an election and, presumably, the availability of legislative time. The shape of reform will require endorsement and, in some cases, enactment by this Parliament. There will be those in the chamber and beyond with particular interests in the course of reform, whether that involves McKenzie friends or other ideas. They will want to ensure that their interests are protected, be they of the cause or constituency type. That is to be expected and welcomed. The ethos of Scots law needs to be upheld; the special requirements of island communities and sparsely populated rural areas need to be taken fully into account and to be fully protected.
The chamber should not lose sight of the original diagnosis that the current system is "seriously failing the nation". That is why, when we have an opportunity to advance matters, even in a minor way, we should take it. Neither vested nor narrow interests should have a part in our debates. There is no place for protectionism or parochialism.
We will all have our work cut out: the Government, the Parliament and the soon-to-be-reformed Scottish Court Service. However, these recommendations can help us to meet the challenge.
We await with interest the report of Professor Neil Walker, who is considering the issue of the final appellate jurisdiction in the Scottish legal system, the new Supreme Court. As Lord Gill says, we need a proper hierarchy of appeal courts, and the whole system must be considered, as Robert Brown mentioned.
Lord Philip recently reported on the future of tribunals in Scotland. Those have proven to be an effective way of delivering civil justice in areas of public law, but the system in Scotland is fragmented and, similarly, outdated.
We need to determine whether an integrated tribunal service for Scotland can improve the operation of existing tribunals; it may perhaps develop the capacity and expertise to handle cases that are currently before the courts. We will take that work forward in parallel with the consideration of Lord Gill's and his team's review.
Lord Gill also acknowledged the value that can be added by alternative mechanisms for resolving disputes and by mediation services in particular. We have already introduced the Arbitration (Scotland) Bill and strengthened protections for home owners, and we will be implementing the European Union directive on mediation. We will also consider further recommendations for public legal education and advice services.
Parliament will be presented with our detailed proposals after public consultation. We have a generational opportunity to seize and we must all meet the challenge. I anticipate the debate and I look forward to changes.
We are happy to accept the amendments. As I said earlier, we are more than happy to speak to individual members and front-bench spokesmen.
It is correct to say that we must deliver the whole package of measures. Equally, we must all agree that there are aspects that can be dealt with and we should not wait until the final chapter has been concluded before we make progress. If we wait, we will simply replicate the delays that are causing significant problems now. Sadly, some Scottish businesses and other interests are choosing to litigate in London—despite the fact that it costs significantly more and is less expedient—because we cannot provide the service. That is simply not satisfactory.
We have to get the balance right between the points made by Robert Brown—
How urgently must the matter of clients in Scotland choosing to use the English jurisdiction be addressed? There is talk of large English firms doing much more business in Scotland.
We must address the matter urgently. The Government is already on the case, because the matter was flagged up to me by Stephen Pearson, the head of legal services at the Royal Bank of Scotland, which, after all, is our single largest institution here in Scotland. We are doing what we can. To the credit of the Scottish Court Service, rules for commercial actions in the Court of Session have been brought in under Lord Reed, but significant progress has still to be made. Further changes are necessary, some of which might require primary legislation, as Lord Gill says. There is an obligation on each and every one of us to do what we can to improve the system and to end the absurdity of Scottish clients choosing to litigate elsewhere. That is why we have been seeking to interact with financial services and with companies that are choosing to litigate elsewhere, to work out what we can do to change that. We are proceeding in a variety of ways, such as through the Arbitration (Scotland) Bill.
There is not one simple solution. This is a package of measures. As Mr Brown and Ms MacDonald have said, the ultimate framework must be taken in its totality. Equally, it is incumbent on each and every one of us to make what progress we can to improve the system, which, as Lord Gill said, is not serving us well.
I am proud to have served in the Scottish legal profession. It is an institution that has, in the main, served us well, but, because of the changes in the social and economic life of Scotland that Lord Gill correctly mentioned, it is not doing so now. We must change in a thought-through manner, which is why I pay tribute to Lord Gill, but we must do what we can, even if not everything can be done immediately. We are having this debate because a great deal must be thought out, discussed and consulted on. Equally, there are matters that are a no-brainer to deal with and it is incumbent on us to do so.
I move,
That the Parliament welcomes the Report of the Scottish Civil Courts Review conducted under the chairmanship of the Lord Justice Clerk and the reports of the Administrative Justice Steering Group conducted under the chairmanship of Lord Philip; looks forward to the report of final appellate jurisdiction in preparation by Professor Neil Walker, and believes that the people of Scotland deserve a reformed and modernised civil justice system that is fit for purpose in the 21st century.
In February 2007, Cathy Jamieson wrote in the foreword to "Modern Laws For a Modern Scotland: A Report on Civil Justice in Scotland" of the need for reform in our civil justice system and for laws that provide accessible ways to sort out problems and protect rights. She announced then that Lord Gill would lead a review, and today we have a welcome opportunity to discuss its conclusions. It is important that Parliament recognises Lord Gill's and his colleagues' great contribution in producing the report. It has been the work of over two years and it does not disappoint in making bold proposals. They need to be debated and tested, but the report makes it clear that, while we are rightly proud of our justice system, it needs reform.
Our amendment to the Scottish Government motion stresses the importance of two fundamental principles that inform our approach to these issues: access to justice and efficiency in our justice system. The key perspective must be that of the person who seeks access to the justice system. Justice for them must be dispensed fairly and speedily, and they should not be excluded from the justice system because of lack of means or any other barriers that they face. They have a right to have their case heard in the most appropriate setting and by a court with the appropriate expertise.
There is clearly benefit in having a number of sheriffs designated as specialists in particular areas of practice, which is the case that family law practitioners made. In such cases, there are advantages for continuity and consistency in decision making in having sheriffs who specialise in family law. The argument is also well made in terms of cases becoming protracted because of the pressure of other court business, particularly criminal business. It is clearly undesirable when cases involving adoptions or referrals from children's hearings are affected, because such cases are sensitive and emotive, particularly for the child involved.
A compelling case has therefore been made for sheriffs to specialise in one or more areas, and for the creation of the new judicial office of district judge to hear summary criminal business and civil claims of a modest value. It is to be hoped that that will make court procedures more efficient. Too often, we hear from constituents whose cases, which are often for relatively small claims, have taken far too long to resolve, and so long in some instances that they have not been able to continue them. That is clearly not fair or just. I welcome the report's emphasis on sheriffs taking a greater role in managing cases and on the use of lay representation where that is appropriate—David Whitton referred to that in his earlier intervention. That will be of clear benefit to those who otherwise could not afford to be represented.
It may have been a slip of the tongue by the member, but McKenzie friends are not lay representatives in court; they are lay supporters for someone who is litigating on their own account.
It was a slip of the tongue, and I am grateful to Margo MacDonald for her correction of that point.
Another positive proposal that would enable people to have better support in their engagement with the justice system is that the Scottish Government should develop and extend in-court advice services as part of the improved provision of publicly funded civil legal assistance and advice. Clearly, that will require appropriate resource; even in these straitened times for public finances, that fact cannot be escaped. We cannot hope to reap the rewards of changing the structures if there is, for example, an agenda to close many sheriff courts. The system's costs are, of course, referred to in the report. The Scottish Trades Union Congress, the trade union Unite and others have highlighted their fears about the effect of steep rises in court fees. They are right to do so, because of the potential impact on access to justice.
It is also right that the review should look at reform in the Court of Session and at how to ensure that that court can best play its crucial role in the delivery of civil justice in Scotland. The proposals that the Court of Session should deal with cases above a value of £150,000 with other cases going to sheriff courts and that a specialist personal injury court with an all-Scotland jurisdiction should be established will undoubtedly be the subject of debate. The proposal for a specialist personal injury court also raises important questions about resource, including how the Government will ensure that an adequate number of sheriffs are allocated to any new court.
I am aware that the STUC, Unite, campaigners on asbestos-related disease and personal injury practitioners have serious concerns about how that proposal will affect their cases, which are currently heard in the Court of Session. We should ask not only whether the £150,000 limit is appropriate, but whether the monetary value of a case alone should determine in which court it is heard. I am aware that the report refers to the potential for the judge to consider at the case management hearing whether the case might have special features that would justify its retention in the Court of Session. That points to the potential for cases of relatively minor monetary value to be nevertheless complex in points of law and potentially important in creating case law for not just Scotland but the United Kingdom. A case's monetary value should not be the only basis on which it might be considered appropriate for the Court of Session.
The wider resource implications of the proposed changes will need to be properly considered, particularly given that the report makes it clear, as Robert Brown pointed out, that its recommendations should not be cherry picked. It should not be a case of the most affordable proposals being implemented first.
In the time available for this debate it is impossible to cover all the crucial issues that are raised in what is an extensive review. It is clear that the review should be fully and carefully considered. There should be a wide consultation, as Bill Aitken's amendment mentions. I welcome the cabinet secretary's announcement that there will be public consultation.
The motion refers to the forthcoming report on final appellate jurisdiction by Professor Walker. The Calman commission highlighted the potential for Scottish criminal justice cases to be taken to the UK Supreme Court if convention rights are involved. That issue should be resolved, as the judiciary from the Court of Session stated in their evidence to the Calman commission. I hope that that will be achieved without considerable upheaval. We will need to return to that matter as well as to the Scottish civil courts review. A major and substantial report that is of such importance to the future of our justice system must receive full parliamentary scrutiny.
I welcome the opportunity to discuss matters with the cabinet secretary. I will certainly take up his invitation, but I believe that the reforms are too important to be conducted with undue haste. The priority must be for legislation to be considered and debated rather than for piecemeal implementation.
We are indebted to Lord Gill and his colleagues for their excellent work in producing substantial proposals for major reform to modernise our civil justice system. The Parliament has a duty to give the report the full debate and consideration that it deserves. Today is a welcome beginning to that vital work as we look to reforms in civil justice that are founded on ensuring that cherished right of recourse to a justice system of which we can be proud.
I move amendment S3M-4987.2, to insert at end:
", which is founded on the principle of ensuring access to justice and that reforms must be driven by this as well as by efficiency in the justice system."
To many people, including many of those involved in the law, it is clear that Scotland's civil justice system operates in a time warp. There is, I think, unanimity in the Parliament that the status quo is simply not an option, so we are extremely fortunate that Lord Gill and his colleagues have prepared such a weighty and comprehensive report that gives us the basis for the fullest consideration of the issues.
Like Richard Baker, I have not time this afternoon to deal with every aspect within the review, but I will stress a number of issues. There is no doubt whatever that people throughout the legal system are doing work for which they are distinctly overqualified. A breach of the peace in the east end of Glasgow need not always require the weighty deliberations of a sheriff court. Where such a matter has been determined by an inferior court, we certainly do not require three senators of the College of Justice to determine the case on appeal. That is an absolute nonsense and it is high time that something was done about it. The report proposes important provisions about what should be done.
As with everything else in life, specialisms are sometimes required. Many of us who sit in the Parliament are aware that we are often required to be a Jack-of-all-trades and master of none. A similar situation applies at present in the judiciary. Great progress has been made in Glasgow sheriff court on specialisation, especially in commercial and family law. That must be extended throughout Scotland. It is inevitable that, once specialisation is in place, cases will be dealt with more efficiently and effectively, because the people who deal with them will do that type of work more or less all the time. To quote the cabinet secretary, it is a no-brainer.
We must look at the hierarchy of the courts and the appropriate use of judicial resources. I referred to the question of appeal. Should a highly qualified senator of the College of Justice be dealing with minor cases, where sometimes the amount involved is only a few thousand pounds? Richard Baker was right to highlight the fact that sometimes important points of legal principle are established by cases of limited monetary value, but to my recollection cases such as Donohue v Stevenson occur only every 75 years, so the arrangements that the Gill report recommends for dealing with minor cases may be appropriate. Let us transfer the bulk of small personal injury and other claims out of the Court of Session to sheriffs who are more than qualified and adequately resourced to deal with them.
I have one regret. It seems to me, and I know that Paul Martin will agree, that there is Edinburgh-centric thinking in the legal profession. If there is to be a personal injury court—there is a valid case for having one—why must it be in Edinburgh? Why can it not be in Glasgow?
Because Edinburgh is the best place.
Mr Pringle says that Edinburgh is the best place, but the initial specialisations came about in Glasgow sheriff court.
On a more serious point, if a personal injury court is established—there are advantages to doing that—we must ensure that it is adequately resourced.
I am a well-known technophobe but I find the lack of use of information technology in the court set-up astonishing. It is also astonishing that there are so many hearings that are totally meaningless for the vast majority of people. Every business nowadays uses telephone conferencing, fax machines and other manifestations of IT. Why can the court system not do that and save a great deal of time? The issue must be looked at.
I am attracted—again, perhaps because Glasgow has pioneered the route—by the call for the creation of third-tier judges. As the cabinet secretary knows, in Glasgow stipendiary magistrates have operated in tandem with lay magistrates for many years to provide a summary justice system that has proved to be satisfactory. It would not be difficult to extend those judges' remit to include such matters as small debts and education and housing disputes. Only one judge would be needed in most sheriffdoms—two, perhaps, in the larger ones. They would take away much of the summary criminal work that our highly qualified sheriffs, many of whom are Queen's counsel, should not have to do, and would deal with smaller-scale civil actions.
The principle of equity must be maintained in law. If there is to be a diminution of judges' qualifications, should we not pilot that first, to see whether more cases go to the European Court of Human Rights? I know that the member is interested in that issue.
My interest in human rights legislation is well known throughout the chamber. I do not think that we would have the problem that Margo MacDonald suggests, as the stipendiary magistrates courts work very effectively. I invite the member to visit Glasgow to see them in operation. Had it not been for those courts, the summary justice system in Glasgow would have collapsed years ago. It is a simple matter of extending their remit. Remember that stipendiary magistrates are all legally qualified solicitors, and to extend their remit to include the minor issues that I have mentioned would not be of any great moment. Judicial specialisation is vital, and it must be advanced at the earliest possible opportunity, although I suspect that we do not need new legislation to do that.
Any system of justice, criminal or civil, must have this essence: it must be fair, and it must be understandable. If the system is to be fair, we must consult and take people with us; if it is to be effective, there must be savings in time and money. The current situation is costing us money—there is no doubt that people are taking contract law outwith Scotland, the oil trade being the classic example. That is not a happy position to find ourselves in.
Does Bill Aitken agree that, while it might be costing lawyers and others, it is litigants who are really suffering by having to go to London?
In most cases, the litigants concerned can well afford so to do, but it is still a highly unsatisfactory situation. We must ensure that Scotland's courts provide a forum where the most complex matters can be determined. Then there will not be a temptation to go to London. In fact, I very much hope that we can reverse that trend.
We have before us a fine basis for further progress. I note and respect the cabinet secretary's views that certain proposals might be accelerated, although, as Robert Brown said, there are dangers in approaching the matter piecemeal. However, let us move onwards and upwards; there is a lot to be done.
I move amendment S3M-4987.1, to insert after "believes that":
", following a full and wide consultation,".
Lord Gill has produced a report that is weighty in several senses of the word. I do not know why it had to be printed using such heavy paper—but that is a minor side issue.
The report identifies a number of serious barriers to speedy, affordable and effective civil justice. I might, as a lawyer by profession, be expected to take this view, but access to justice, particularly civil justice, is a central requirement of a functioning democracy. Redress against injustice and procedures for resolving disputes between citizens or between the citizen and the state were among the earliest functions of the state.
Today, the courts are but one of a wide range of bodies that are concerned with resolving disputes. Many trades and professions have complaints and dispute procedures and many services are underpinned by insurance and arbitration arrangements. There is the Scottish Public Services Ombudsman, there are mediators and advocates—in the advocacy sense, as opposed to the lawyer sense—there are in-house advice services, citizens advice bureaux, campaigning newspapers and many other organisations. Access to the courts is supported—albeit less than it once was—by state legal aid and through the trade unions. However, the central thread and the ultimate recourse has to be to the courts. I say that against a tendency to highlight arbitration and various other devices. The courts must remain the central recourse.
The courts are the third arm of Government and are jealously and rightly protective of their independence. They are able to give the sanction of the law to their judgments and to enforce their orders if need be. The courts must be a bulwark of our democracy, and an independent legal profession that is accessible to everyone—like Mr MacAskill, I am proud to have been a member of it—is the necessary precondition of judicial independence.
Lord Gill's report is highly controversial on a number of fronts, but it will define the debate in the weeks and months to come. It would be wrong to try to give a definitive response in the chamber today to what is a very lengthy report, so I stress that we must, despite our desire to move forward with it, ensure that we get the details of its implementation right. If there is one thing I have learned as an MSP—and as a minister—it is that 1 per cent of the job is about good law, and 99 per cent of it is about making things work in practice. We must be conscious of that caveat.
I wish to raise a number of specific points. Lord Gill presents his report as something that is to be taken as a whole, and not cherry picked from—I made that point earlier. However, although the report's recommendations are interconnected, I think nevertheless that there are separable strands that may be considered.
There are some matters to which Liberal Democrats give their unqualified support in principle, and which do not necessarily raise major financial issues. They include the necessity to phase out routine reliance on temporary judges and sheriffs, which distorts the system, reduces the perceived independence of the bench and could undermine our adherence to basic European Convention on Human Rights principles. They are principles to which I, unlike Mr Aitken, give considerable adherence.
The widening of certain court powers, notably the definition of title and interest to sue, in order to give a broader range of organisations the right to take up or enter judicial review proceedings, is important. For example, Age Concern Scotland might have the right to raise proceedings that affect older people as a group, instead of having to identify a nominal individual petitioner to bring an action. That approach would significantly enhance the accountability of Government and other public bodies. It is also sensible and long overdue to permit the taking in the sheriff court of actions of reduction and proving the tenor of lost documents—slightly esoteric actions, I know, but they happen from time to time.
The extension of in-court advice services, such as the one that was pioneered in Edinburgh, is also important. I understand that there is increasing support from the Scottish Government for there to be such an approach throughout the country. We have touched on McKenzie friends.
Lord Gill identified the need for a separate investigation of issues to do with the complex matter of the cost of justice and the implications of awards of expenses. Issues such as the growing gap between the cost of the litigation to a party, the expenses that are awarded on success and—not least—the recoverability of after-the-event legal expenses insurance premiums, deserve close examination, which Lord Gill and his committee did not have time to give them. The placing of a duty on opposing experts to try to agree their positions is a valid direction of travel, but might, if my experience in such matters is anything to go by, have cost and time implications.
There is potential in the introduction of a court discretion to make a protective costs order or to put a cap on expenses in certain cases that raise significant issues of public interest. Lord Gill rightly indicated the conditions and likely limitations on such orders. We do not want to make it overly easy to go to court; we want people to settle their cases if possible, and the system must reflect that. Nevertheless, there is a perceived injustice whereby public authorities seem to have a state-funded bottomless pit with which to raise or defend actions against private individuals, funded by taxes that were contributed by those individuals and other people who do not support the Government actions that are being complained of. We have experienced that in the context of school closures. My colleague Ross Finnie will develop that point in the context of the Aarhus convention.
There will be support for many of the technical recommendations, such as the docketing of a case to a particular sheriff and the stronger powers to dispose of a case summarily. Enhanced case-management powers for the court will also be vital—although when I was in private practice I sometimes thought that sheriffs had forgotten the pressures of a busy office and a heavy case load when one asked for continuations on the continued adjustment roll, which was regarded as the last salvation of many a solicitor. The serious point is that there is a balance to be struck between the too-heavy sanction of dismissing a case altogether or granting decree because of a one-off procedural error, and letting a case drag on because the lawyer for one side or the other—sometimes both—has taken his eye off the ball.
The strength of the Scottish system was always thought to be the fact that well-drafted pleadings focused attention on the issues in dispute at the heart of the case. However, in many cases of small value or limited complexity it might be better for judges to adopt a more hands-on approach, to ensure speedy identification of the issues and a proof that is limited to the matters that are in contention.
The biggest issue, which will be costly, is the reform of the court hierarchy—not least the introduction of a new lower tier of district judges in the sheriff court. As Bill Aitken said, there is precedent in Glasgow for that approach. Such issues need close consideration, perhaps by the Justice Committee, and the Government must provide direction by indicating early on its estimate of the likely costs and the chances of early availability of funding. I noted that the cabinet secretary commented that we are in a different financial climate. We are all conscious of that.
We have substantial concerns that some changes would result in a loss of access to the Court of Session. We have talked about the personal injury court and I agree with Bill Aitken that there is no particular reason why that should sit within Edinburgh sheriff court—indeed, I think that I am right in saying that because of the presence of the Court of Session the court attracts less personal injury business than do most of the other courts in the country. Is there perhaps a downgrading of the importance of family actions and children's hearings referrals, if such actions are thought to be particularly suitable for the lowest court? Some of those cases are the most anxiety-inducing and challenging that a lawyer can face.
Lord Gill did not mince his words. He said that we have
"a structure of civil justice that is seriously failing the nation."
He went on to say that
"The Scottish civil courts provide a service to the public that is slow, inefficient and expensive."
He and his colleagues deserve our thanks for a thorough and innovative report. We must consider the report and decide how much resource needs to be allocated to reform, and whether the direction of travel that is proposed is wholly or largely right. The task is urgent, but time must be taken to get it right. There must be concentration on the detail, to ensure that our system of civil justice meets the needs of all parts of our multifaceted country.
The Scottish Government has already started to improve our civil justice system. Scotland rightly prides itself on the institutions of its distinctive justice system—institutions that remarkably survived the long adjournment of this Parliament—but there is wide and, as is obvious, cross-party acknowledgement that those institutions are now creaking under the weight of their work and are in need of serious reform. That is clearly Lord Gill's view.
I will not perjure myself by claiming to have read all 700 pages of the report. Even the executive summary runs to more than 35 pages, which stretches the shameful attention span of most politicians. It is clear that the recommendations form a comprehensive whole and, rather than cherry pick from the report now, we should consider it as a whole before we go any further.
I thank Lord Gill and his team for dedicating two and a half years to the project and for producing a report that will, I hope, be used to effect the changes that need to be made in our civil justice system. The report covers the cost of litigation, the role of mediation, the development of modern methods of communication and the proposed specialisation of courts. Paul McBride QC—not someone whom I often find myself quoting—was reported in The Scotsman as saying:
"There is no downside to Lord Gill's report. The idea is it will improve access to justice for civil litigants and save them a great deal of money and time… Lord Gill is doing something that is long overdue."
The need for such reform is brought home to me as a layman by one simple fact that sheds light on the ridiculous nature of the present situation: in more than half of cases before the Court of Session, it costs more to sue than the sum that is being sued for. That fact, taken together with the long delays that arise from the pressures of criminal business, leads in Lord Gill's view to a need for greater judicial specialisation. In his view, judicial resources are being used inefficiently and there is an overreliance on temporary judicial resources. He states that there is a need for effective case management, reformed procedures and investment in information technology. He also identifies a problem with the current costs and funding for litigation.
If one thing in Lord Gill's report is perhaps worth concentrating on as a potential remedy to some of the problems, it is his proposal for the new office of district judge. The proposal merits considerable parliamentary time for consideration, but it is an attractive idea that a district judge might sit in the sheriff court to hear criminal cases and civil cases that have a value of less than £5,000. Those courts should have, in the report's words,
"a problem solving or interventionist approach in which the court should identify the issues and specify what it wishes to see or hear by way of evidence or argument",
with—significantly—rules that are
"drafted for party litigants rather than practitioners."
If the court agreed, litigants could be represented by suitable lay representatives. Those proposals would significantly reduce the complexity and expense for litigants and reduce the pressure on sheriffs.
The Scottish Government has shown some commitment to reform in those areas through reform of the summary criminal justice system and the Judiciary and Courts (Scotland) Act 2008, which has given the courts modern governance arrangements for the first time. The Government has also introduced an Arbitration (Scotland) Bill to strengthen the protection of home owners, and will soon implement the EU directive on mediation.
Lord Gill has made some proposals that the Parliament needs to take seriously, particularly his thoughts on district judges, a new civil justice council, a major shift in judicial procedure and the creation of a non-geographical personal injury court based in Edinburgh. If we are to improve our justice system and implement any of the changes that he recommends, the report should be carefully considered in Parliament and through public scrutiny and evaluated further to determine which measures might be adopted.
The proposed changes are major reforms that will take time to put into action. Although it might be a slow and painful process—especially given the present need for reduced public spending—the end result will help to create a civil justice system that is less costly in time and money to those who utilise it.
Before we get ahead of ourselves, the intention behind the motion, as I read it, is that we produce proposals that will be subject to detailed public consultation. After that process, we can proceed with restructuring our civil justice system, as determined by the public and Parliament.
Having sounded that cautionary note, I say that we would, as a Parliament, do well to heed Lord Gill's call for radicalism and his acceptance of the need for radical change that, as he concludes, remains true to the values and distinctiveness of Scots law and our separate legal system. I believe that that might well be achieved by, among many other measures, removing the role of the UK Supreme Court from the civil appeals process in Scotland.
Presiding Officer,
"We are proud of Scots law and our independent legal system; but what is the point of that if the machinery of justice in Scotland does not work?"
Those were Lord Gill's words as he introduced his report. He went on to say that the study had satisfied him that civil justice in Scotland was failing. He said:
"It is failing to deliver justice to the citizen expeditiously, economically or efficiently. Our structures and procedures are wholly unsuited to modern conditions. They inflict needless costs on the public purse, on the Scottish Legal Aid Board and on individual litigants at every level. The system's delays are notorious and in some cases scandalous. Its procedural inefficiencies operate against the interests of justice."
I do not think that anyone could accuse Lord Gill of pulling his punches when he introduced his report.
I welcome the opportunity to debate the substantial documents that make up the report. Like others, I have not yet gone through all 700-odd pages of it in detail, but one of the things that I learned as a minister was to read summaries fairly quickly, form an initial view—in this instance, a cautious welcome—and then delve into the detail, find the devils and try to change the bits that I did not like. I give due warning that I will probably do the same with Lord Gill's report.
When, as Minister for Justice, I commissioned the review, I did so because I was acutely aware of some of the failings that Lord Gill has pointed out. I wanted our civil courts to be reformed first and foremost to improve access to justice. I wanted to ensure that cases were dealt with at the right level in the court system, and to speed up the process in the interests of the public, particularly in small claims cases, which involve small sums of money. I also wanted to ensure that despite the need to focus on speeding up the work of our criminal courts, civil cases would not be deprioritised, and I wanted to see more active management of cases as they progress through the courts.
In an excellent piece in the legal pages of The Scotsman immediately following the launch of his report, it was reported that Lord Gill wished his proposals to be seen as pragmatic rather than as revolutionary. I do not wish to cast Lord Gill as the Che Guevara of the legal world, but I suspect that the scale of the reforms that he has proposed will have been met by some people in the legal system with a sharp intake of breath. Some of his proposals are, indeed, extremely radical, but it is entirely possible to be radical and revolutionary and at the same time to be pragmatic and come up with something that works.
The report is wide ranging, as it was expected to be. Of course it is right that we take time to consider it in detail, and I hope that the debate does not result in a polarisation between those who want the report to be adopted as a whole and those who feel that there are certain issues that we can progress now. I sound a note of caution about the scale of the reforms. As someone who took through a number of pieces of legislation to reform our criminal justice system, I suggest—I am sure that the Cabinet Secretary for Justice will not mind my saying so—that the work of implementing the report will not be completed in the present session of Parliament and might not even be completed in the next session. In fact, it might extend into the one after that, when neither the cabinet secretary nor I might still be in Parliament. We need to take time to look at the report, but let us be sensible, too.
If we can speed up dealing with issues to do with management of the courts, let us get on and do so. However, as Richard Baker and other members have said, let us not simply look for the cheap options and try to put them in place; rather, let us look for the sensible and smart options and put them in place.
On management of cases, it is a bit of a no-brainer to say that someone should be in charge of a case and manage it through the system. Of course it is sensible to make greater use of IT and to build on the positive work that has been done in the specialist courts.
There are a number of issues in the report to which we should give early attention. For example, surely it is not too much to expect judges to explain themselves if they are unable to issue a judgment within three months of a case being concluded. It is important for people who are involved in the system that they get that information and that their cases are dealt with quickly.
We have heard about the use of mediation and alternative dispute resolution. Such things are important. It also makes sense to consider how we can improve the public's education about the legal system and the information that is available. We have already heard about so-called McKenzie friends.
There is concern about costs, which are fundamental to access to justice. The report highlights the fact that justice should not be just for those who can pay. That means that, at the earliest stage, advice should be made available in a wider range of ways, and that community law centres and in-court advice projects, for example, should be expanded.
The report says that there should be the option of making special orders in relation to expenses in courts in cases in which a significant public interest is involved. That may help those who may wish to bring cases forward.
I do not have enough time to say much more about the report, but I hope that I will in future debates have the opportunity to speak again about civil justice. However, before I finish, I want to mention a couple of things that we should welcome. There is a recommendation to restrict the ability to litigate of people who continue to abuse the system. Ordinary people in the real world find it difficult to understand why some people seem to be able to get constant access to the system while they cannot get access to justice for matters that affect them.
We should also welcome the recommendations on multiparty actions. Unite and the STUC have expressed concerns about court costs and the privative limit. Those issues need to be addressed. I hope that the minister will take those concerns on board and give appropriate assurances that reform will be about improving access to justice and not simply about making financial savings.
In conclusion, the report was described as a "doorstop of a report" in the article in The Scotsman. Its scale and volume must not mean that we do nothing. I think that Bill Aitken said that the status quo is not an option. I do not agree with him often, but I agree with him on that. I hope that the cabinet secretary will bring to Parliament a coherent plan that indicates how he intends to proceed, and that he will give us the opportunity to debate the sections of the report that we do not have enough time to deal with today.
I would like to address the wider issues that the report raises. I am grateful to the cabinet secretary for also mentioning Lord Philip's report, because it is important in the wider context.
There are, of course, two areas of civil justice. In one area, a citizen disagrees with another citizen; in the other, a citizen disagrees with the state. Both are within the civil jurisdiction. However, I would like to concentrate on citizen versus state issues and what we regard as administrative law.
Public servants now make a vast number of decisions on many matters, including entitlements to state benefits including pensions, tax liabilities, education placements, property valuations and immigration matters. That would probably have seemed extraordinary to people who looked at the system 100 years ago.
In discussing civil justice, we naturally tend to look at the pathology of the system—the times when it breaks down and people finish up in court, arguing with each other. However, we should not forget the preventive medicine, which is about having good systems so that people learn. Lord Gill makes some mention of that, as Lord Philip does. We need to consider not the way in which the local tax office organises its business, but the way in which it deals with a complaint if the taxpayer's unhappiness goes beyond the natural desire not to part with his hard-earned money. So, although I congratulate Lord Gill and his staff on the review, I also refer to Lord Philip's tribunal review of June 2009 and point back to Sir Andrew Leggett's 2001 review of United Kingdom tribunals.
We must ensure that, whatever administrative system we have, it picks up the decided points from its appeals system. We must ensure that those who go to tribunals to complain about administrative systems get their decisions fed back into the administration so that the administration learns and does not go on making the same mistake. We must also ensure that the civil claims that get to courts—especially in matters of personal injury, to which one or two members have referred—are subject to feedback. I am well aware that, as has also been alluded to, very small claims can have an enormous positive impact on the place of work. We must ensure that the system works back.
In the same way, we should worry about accessibility. It should not be necessary for me to go and find a lawyer in order to work out how to deal with an administrative failure. It is essential that our citizens have access to that kind of basic information. Equally, the small claims process should ensure that I do not have to go to a lawyer in order that I can deal with a small claim. The small claims process exists, but I doubt whether the current limit of £5,000 is the right sum. It seems to be too small by a considerable distance, but Lord Gill did not suggest that we should change it.
In drawing together those two thoughts, I say that I believe that we need to reflect on the whole system and consider what we are asking the tribunal or court to decide. We should allocate business on the basis of the model that is appropriate for deciding the right thing. I suggest, on the basis of Lord Philip's comments, that courts are better at determining the law when the facts are, by and large, not in dispute, and that tribunals are better at determining the facts and then applying the law, by and large, when it is not in dispute. Oh, that life were so simple. Of course, it is not.
There is some need for us to think about the way tribunals interact with what I might describe as the lower end of the courts system, in order to ensure that we have a complete system that deals with all the cases in the best possible way.
I am pleased to take part in this important debate. In 2007, Cathy Jamieson was right to identify the need to change and modernise our civil justice system. She was also right to recognise that that could not be achieved quickly or by someone without experience and in-depth knowledge of every corridor of justice. She was right, therefore, to appoint the Lord Justice Clerk, Lord Gill, to undertake the review. Like other members, I thank him for his work.
In 2007, it was known that radical action would have to be taken if the aim for the future was to deliver a modernised justice system that was fit for the 21st century. Lord Gill outlines in his report how civil justice in this country is failing and how the structures and procedures in the civil courts system are wholly unsuitable for modern conditions. He tells us that there has been little change in our civil justice system in 100 years. Indeed, he tells us that
"The practitioners of 100 years ago would have little difficulty in picking up the threads of today's system"—
a part of the report that the cabinet secretary highlighted. It is fair to say that reform, change and modernisation are due.
I am pleased that a number of members have spoken about the McKenzie friend proposals that the Lord Justice Clerk makes in his report. The issue of McKenzie friends might divide this chamber but, for 40 years, McKenzie friends have been assisting unrepresented parties in civil courts in England and Wales. Lord Gill's review states:
"If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend') should be permitted to address the court on behalf of a party litigant."
Supporters of McKenzie friends, including bodies such as Which? and Consumer Focus Scotland, have argued that these public assistors should be installed within our court system. Now, with the support of Lord Gill, I believe that the Scottish Government should examine that and take it forward. For many, the court environment can be daunting and stressful, and they might not properly understand court procedure or how to put themselves across in general. In such cases, McKenzie friends can aid litigants by providing them with information, assisting them to locate legal documentation, taking notes during the hearing and providing general moral support.
The rules would have to be ironed out, of course. Some people are in favour of allowing McKenzie friends to address the court on behalf of litigants; others would prefer that they provide quiet and sensible advice to litigants during hearings. However, I hope that we can achieve a consensus on the fact that having these public servants in our civil court system is long overdue.
The review is a major piece of work that has taken well over two years to complete. As many have pointed out, the two-volume report runs to hundreds of pages, as do the recommendations and the synopsis. The report was published last week, and I doubt that any member has read it all the way through. Indeed, some members have admitted that they have not done so—although from Richard Baker's speech, I suspect that he has read it from cover to cover. At this early stage, therefore, it is difficult to give Lord Gill's report and recommendations the detailed consideration that they deserve and require. However, I do not want to delay progress; I want a full debate, and no one would suggest that we are not getting that today.
At the end of this process, I want to have a civil justice system that we can all access if we need to and which does not bar individuals because they cannot afford to pay for justice. A justice system that places justice out of reach of citizens because of their status or income provides no justice at all.
I support the review, which is long overdue, but I have serious concerns that the process might have been driven more by cost than by issues around access to justice. The cabinet secretary will be aware that I have expressed concerns about Government decisions, such as its decision last year massively to increase civil court fees, which was vigorously opposed by Labour members.
It is essential that the cabinet secretary provides Parliament with details about how we will be involved in considering the way forward. The report is huge and contains a number of recommendations that need to be dealt with in detail. I want the cabinet secretary to tell us how the Government will ensure that there is full consultation with and participation by the general public, trade unions and legal professionals, and what the timetable for that will be.
As Cathy Jamieson said, we have taken a long time to get here, but we have to take time to ensure that the rest of the process is not rushed so that, at the end of the day, we have a civil justice system that is fit for the 21st century and allows access to justice for all who need it.
There is no doubt at all that during the 10-year life of this Parliament, matters environmental have very much risen up the agenda. The Parliament has been very responsive to that, and has passed several landmark pieces of legislation. The first was the Environmental Assessment (Scotland) Act 2005, which not only transposed into Scots law the requirements of the strategic environmental assessment directive but extended that directive extensively so that it applied to non-regulatory as well as regulatory requirements, thereby addressing a distinction that was not entirely logical. Of course, more recently, we passed the Climate Change (Scotland) Act 2009.
Although that legislation has all been extraordinarily welcome, it has served only to accentuate the requirement to address the needs and rights of the citizen that the Aarhus convention identified way back in 1998. Those included the right to have access to information on the environment; to have public participation in decision making on the environment; and—critically, in article 9.3—to have access to justice in environmental matters.
We should consider briefly what the Aarhus convention says on those matters. It is interesting to note that Aarhus identifies the need to be clear about the parties who might have "a sufficient interest" and
"What constitutes a sufficient interest and impairment of a right".
Aarhus also makes it absolutely clear that
"members of the public"
must
"have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment"
and that that system must
"be fair, equitable, timely and not prohibitively expensive."
When Cathy Jamieson initiated the review of civil litigation in Scotland, we Liberal Democrats had high hopes indeed that the inquiry would examine closely the provisions of the Aarhus convention and consider how it might more quickly be implemented and brought into Scots law.
There have been a number of developments in the intervening years, particularly in England, where two reports have been produced. The 2005 report by the Civil Justice Council on "Improved Access to Justice—Funding Options & Proportionate Costs" made a number of important recommendations, but they were focused, it is curious to note, on a very narrow class of case. The report recommended the establishment of a costs council, but the Ministry of Justice down south did not think that that was a particularly clever approach. More recently, the "Review of Civil Litigation Costs: Preliminary Report" by Lord Justice Jackson was published, which dwells heavily on how we can contain and confine those costs.
With regard to Lord Gill's report, I am not entirely sure of its environmental credentials, as I tend to agree with my colleague Robert Brown about the paper on which it has been printed. I am not sure whether the paper is recyclable, but it appears that a lot of forests have been devoted to its production. I shall leave that issue aside, however, because whether or not Lord Gill has contravened some environmental considerations, I am delighted to say in mitigation that he has paid due attention to the requirements of the Aarhus convention.
I find particularly helpful—as Cathy Jamieson mentioned—the report's comments on title and interest. It states:
"On balance, we are persuaded that the current law on standing is too restrictive and that the separate tests of title and interest should be replaced by a single test: whether the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings."
That conclusion follows extensive debate, and cases that were sought and brought and which are mentioned in the report's appendices. The report clearly refers to the direction of the Aarhus convention, and it is therefore to be welcomed.
Equally welcome is the question of costs. It is instructive to note that, if we require to change our law to comply with the convention, the same is true in relation to protective cost orders. I hope that the minister has taken careful note of that. The report states:
"The status quo leaves room for doubt and may not be sufficient to fulfil the United Kingdom's obligations under the Aarhus Convention … as doubts have been raised at Inner House level about the competency of such an order it may be open to question whether the current arrangements satisfy the requirements of the Convention."
That is in stark contrast to the answer that the Minister for Transport, Infrastructure and Climate Change gave my colleague Alison McInnes during the debates on amendments to the Climate Change (Scotland) Bill, when he said:
"There is no question of Scots law not having been brought into line with the requirements of the convention".—[Official Report, Transport, Infrastructure and Climate Change Committee, 9 June 2009; c 1965.]
I know that Mr Stevenson has held a number of jobs, although he has not held one on the bench—
I doubt that.
The member doubts it. So do we all. Indeed, if Mr Stevenson were responding to the debate, we would probably find out that he has held such a position, but fortunately Mr Ewing will be winding up for us.
Those are two very important findings in the context of environmental justice and I hope that the minister will take them seriously. I am bound to say that a distinction can be drawn between cherry picking and a clear statement of intent by the Government on how it proposes to implement the changes to civil litigation, but that does not mean that the changes all have to be contemporaneous. The Government can set out a proposal. I encourage and invite the minister to do so, and to put environmental justice in the first category of measures that he will introduce.
Although this afternoon's debate is timely and useful, it is clearly only the start of the process of examining the recommendations in Lord Gill's lengthy and detailed report on our civil justice system. Like other members, I do not want to jump to any early conclusions on the recommendations, but I will cover some general areas. Some proposals in the report will be welcomed by many people as long overdue, but at the same time there are areas of concern that need to be explored further. I will begin with those areas on which I believe—I certainly hope—there will be general agreement.
Several members have mentioned the report's support for lay assistants or McKenzie friends to assist unrepresented parties in our courts. Reform is indeed overdue in that area, and many people have argued for such a change for a great many years. The fact that it seems to have worked well in other legal jurisdictions should give us the confidence to make the change.
The greater use of mediation, which avoids the necessity to go to court, is also to be welcomed. I firmly believe that most people do not want their day in court. Instead, they want speedy and fair treatment that resolves their problem without risking costing them the earth.
The third unanswerable case for change concerns the position of part-time and temporary sheriffs. Other members have mentioned that. Such sheriffs should be a resource that is used only when necessary. Although I support the retention of the flexibility that they provide, it is clear that their use has become the norm rather than the exception. That is not conducive to an efficient civil justice system.
I turn to some areas on which there will be greater debate and perhaps disagreement. The first is the establishment of a civil justice council for Scotland. We need to be sure that such a body is absolutely necessary before we set it up. A permanent civil justice council might bring advantages, but the case for establishing one still needs to be made. There is merit in keeping our system of civil justice under review, but does it follow that we need to establish a permanent body to do that? I am interested to hear the arguments on that in the coming months.
I also have concerns about the impact that the report's recommendations might have on the basic principle of access to justice for all. On the face of it, the proposal for a system that places appropriate cases in the appropriate court does not seem contentious, but we need to consider carefully a wider issue before it can be supported. Making a judgment on the value of one case against another is fraught with difficulty, and it will be tricky to come up with objective criteria that will enable that to happen to everyone's satisfaction. I note that, in its briefing to MSPs, the STUC objects to those changes, and the examples of the cases that it argues will be denied access to higher courts need to be investigated and, at the very least, explained by those who are proposing the changes. Justice delayed is justice denied, but is it not also true that justice downgraded is justice denied?
In research that it published earlier this year on the views and experiences of civil court users, Consumer Focus Scotland said:
"The research points to an urgent need for better information for the public, and wider access to support services in all courts".
It also stated:
"Courts themselves are not seen as user-friendly".
Of course, no research will be able to quantify the number of people who are put off from pursuing their case before it even begins. Whether that happens because of a perception of what is involved or a fear of the cost, we do not know, but, despite its anecdotal nature, the evidence allows us to confidently suggest that many people are being dissuaded from pursuing legitimate claims. Indeed, I have a personal example of just such a case. When my wife and I were married 14 years ago last week—
Congratulations.
Thank you very much, Linda. Our anniversary might have gone better if I had remembered it.
The photographer whom we hired for our wedding pictures certainly turned up and certainly spent the day clicking away. However, he failed to produce any photographs. His excuse was that the lighting was too poor in the registry office and hotel and that, as a result, it was not his fault that none of the photographs came out. Consequently, we were out of pocket by hundreds of pounds and we had no photographs of our wedding day. When we demanded our money back, we were met with a blank refusal. He said that he would not return the money; after all, he had turned up and taken the photographs, and we were paying him for his time, not for results. Our only course of action was to sue for the return of our money, but at that time we could not afford to hire a solicitor and we had no idea how to pursue the matter further.
My experience might be a small example of situations that people face, but it is not untypical of where the civil justice system lets people down. They do not know what their rights are or where to turn for help and advice, and they are afraid of the potential costs. The result is that people are left feeling aggrieved that they can be ripped off with little prospect of getting the legal system's help to resolve the issue fairly.
I want to finish, therefore, with the recommendation for greater education for the public on legal rights and responsibilities and where to go for help. Such a move will be important in improving matters for ordinary users of the civil justice system. I look forward to the implementation of the review's proposals for enhancing access to justice for the people of Scotland.
In today's society, access to justice is just as important as access to health care and education. Our judges, like our hospitals and schools, should be there for us all, and access to all three should not be hindered in any way by status, education or income.
I want to follow on from Mr Maxwell's speech by addressing the issue of education. Unless one happens to be a frequent attendee at court, the working of the Scottish legal system and, indeed, any other legal system can be something of a mystery. My own education in legal matters began in my early days as a journalist covering the old burgh courts, where entertaining explanations of how the accused came to find himself in the dock were intertwined with sad tales of alcoholism and poverty. Later, when my shorthand improved, I moved to covering sheriff court cases and then cases at the High Court, where the most serious offences are tried. Even then, the legal knowledge that I had gained from covering court cases left many unanswered questions about due process, although there was usually a helpful sheriff clerk or a friendly defence solicitor such as Mr MacAskill or Mr Ewing to explain what had transpired. Later still, I even made a television documentary about lengthy delays in bringing personal injury cases to conclusion in our High Court. That is why I support moves to promote greater understanding of the legal system and court processes among members of the public.
As I said, it is understandable that anybody who has not been involved with the justice system in a personal or work capacity could be confused by the processes and technical nature of the system. I can draw on many examples from my constituency casework of constituents of all ages and varying levels of academic education who, through no fault of their own, have been confused by the legal system. That is why I welcome Lord Gill's suggestion on early intervention and education on the law and the legal system, perhaps as part of the secondary school curriculum. Those issues and questions might be debated at another time.
Last week, the Law Society of Scotland welcomed Lord Gill's civil courts review. The convener of the society's civil justice committee, Kim Leslie, said:
"The Society will work positively with everyone involved with the review, as well as in any other area where we can make a difference to ensure that the system works for everyone."
Where do we go from here? As Cathy Jamieson said, the next step is to ensure that a timetable is set out to consult on Lord Gill's recommendations, and after that we need a timetable for implementation.
My colleague Cathie Craigie and several other members touched on the need for the introduction of McKenzie friends in Scottish courts. The cabinet secretary knows about my interest in third-party rights of representation. Indeed, only a couple of months ago, the Association of Commercial Attorneys finally earned the right for its members to appear in court, but only after a lengthy process, which at times seemed to involve an obstructive approach from the Scottish legal establishment. It is to be hoped that the recommendation on the introduction of McKenzie friends does not suffer similar delays. That is why I welcome the cabinet secretary's earlier remarks in response to my intervention.
We must make expeditious progress on Lord Gill's enlightened recommendation on McKenzie friends. The first thing that can be done is for the courts to grant McKenzie friend rights with immediate effect. There is no need for legislation from the Parliament, as it is within the powers of the courts to grant those rights. That would demonstrate the intent that things are going to change. The public want that change, Lord Gill has recommended it, the consumer associations support it, and it is an equitable and compassionate remedy for some of the access-to-justice restrictions in Scotland.
The report makes recommendations on the increased use of IT systems such as e-mail, video and telephone conferencing, and the digital recording of evidence. That might come as a bit of a surprise to Bill Aitken, who is still in the age of the fax, but I am sure that he will catch up. The benefits to the environment and the cost savings to the Government from implementing those recommendations are clear. The measures would also significantly reduce delay and expense for members of the public. However, that progress would have a price. We are going through the process of unifying the district courts in Scotland. Previously, many of them were not fit for purpose because they could not meet the demands of the IT systems that are required for a 21st century justice system. Bringing the rest of the justice system online so that staff time and court space are utilised more effectively will require considerable additional capital expenditure. Lord Gill examined models in other parts of the world such as Singapore, Israel and the US federal courts. He also considered in detail systems that are used closer to home, in the county court bulk centre, which is based in Northampton.
The cabinet secretary might not have the answers today, but he must put costings next to some of the ideas. How much will it cost to implement the recommendations? How much could be saved yearly? Will the changes produce a more efficient and effective justice system? What will be the on-going costs of maintaining any new systems? How much will it cost to recruit an unspecified number of new full-time sheriffs? As the Scottish courts are funded by the Scottish Government, it is appropriate for the cabinet secretary to bring the answers to the Parliament, although we cannot expect him to do that today.
One of the principles underpinning Lord Gill's review was that
"it should have regard to the effective and efficient application of the resources of others."
However, the review is missing information on the financial consequences. There is little information about the current cost of the civil justice system and little guidance on the probable costs of or savings from implementing the recommendations. Some might say that we cannot put a price on justice. However, we can put a price on how justice is administered, and I trust that the cabinet secretary will bear that in mind when, as I hope will happen, he takes forward some of the recommendations in the report.
I welcome the opportunity to debate the civil court system in Scotland. Some of the Scottish Parliament's most important work is done without fury, fanfare or a packed press gallery but with politicians working together to improve Scotland—this is one of those occasions. I congratulate Cathy Jamieson and the former Scottish Executive on instigating the review of the civil courts that we are discussing.
Lord Gill's root-and-branch review may not have grabbed many headlines, but its recommendations have implications for many aspects of our everyday lives. The review seeks to improve accessibility to justice and to ensure that individuals, families, communities and businesses who face disputes are better served by a modern, fairer civil justice system.
As many members have said, the review's remit was broad and the report runs to 700 pages. I have chosen to focus on one aspect: multiparty actions.
I am delighted that Lord Gill's review recommends the introduction of a form of multiparty action procedure in Scotland. Unlike many other jurisdictions, there is currently no formal mechanism in this country for handling cases in which a group of individuals have common issues against the same defender. The class action debate has been around for 30 years or more, and opinion remains divided. There are those who see class actions as the champion of the underdog against big businesses, but others see them as the friend of only the lawyer and fear that they will herald the adoption of a US-style litigation culture.
Consumer Focus Scotland has long championed the case for class actions, arguing that they are essential to ensure that consumers can enjoy their rights. Under the current system, in which there are many small claims, individuals may not find it worth while or even possible to pursue a loss on their own. In bigger cases, such as product liability, specialised expert evidence may be required, which is beyond the means of a single party. Class actions could help in those circumstances and act as a deterrent to illegal action by traders by better holding them to account for their actions.
A system that allows people to band together not only improves access to justice but may be better for the courts and for the defender by promoting consistency in rulings and avoiding costly duplication. Lord Gill's report suggests that a formal class action procedure might have been useful in recent mass litigation in the Scottish courts, such as the dispute over the lawfulness of bank charges, which resulted in 400 actions being litigated in sheriff courts across Scotland, causing unnecessary expense to both parties. A class action could have allowed the actions to be transferred to one court and managed as a single group.
There are many other high-profile examples of cases in which a class action might have been a useful mechanism, from the infamous 1980s case of Hoover not honouring its commitment to free US flights to the recent failed attempt by Ian Hamilton QC to sue RBS for negligence after it sold him shares in 2008, allegedly representing itself as solvent. Mr Hamilton's attempt to trail-blaze for the small-scale investor came to an abrupt halt when the case was moved from the small claims court. Potential expenses forced Mr Hamilton to abandon his case, declaring that
"Scots law favours the rich against the poor."
In such cases the introduction of class actions could be an important means to level the playing field and provide more equitable access to justice.
It is not only consumer champions who have made a strong argument for class actions; the Scottish Law Commission supported their introduction in 1996, but the Court of Session Rules Council decided not to take its recommendations forward. I am pleased that Lord Gill's considered review has now broadly agreed with the SLC's findings.
The case for class actions has recently been brought before the Public Petitions Committee by the Leith Links residents association. Residents of Leith Links were moved to approach the Parliament after 40 years of suffering what is known locally as "the Seafield stench"—foul odours from the nearby sewage treatment works. The residents have felt powerless to resolve the issue and sought to take collective action against Scottish Water, but they found that no mechanism was available for such action in the Scottish courts. I spoke in support of the petition, and I am pleased that the Public Petitions Committee agreed to keep it open until after the publication of Lord Gill's review. I now look forward to the Scottish Government's response to the petition in due course.
There are concerns about the potential for class actions to bring in the litigation culture seen in the United States, but Lord Gill has suggested a model that would provide many safeguards against such abuse. Different forms of class action are already available in many European countries without the excesses of the American model being evident. England and Wales adopted group litigation orders in 2000 and there was no deluge of cases, with only 62 GLOs made in the first eight years. In Portugal, a case proceeds only after a preliminary hearing, which considers whether the case is "manifestly ill-founded", and Lord Gill's review recommends that a similar preliminary merits test is adopted here. Cases would also need to be certified by courts, with one of the recommended criteria being that a group action is preferable to "any other available procedure."
I believe that a formal class action procedure should be available in the Scottish courts to ensure that our system of civil justice is fundamentally fair and that the rights of the individual are protected. That would be one of the many tools available in a modern, efficient, forward-looking system of civil justice in Scotland.
I congratulate Lord Gill on his thorough review and look forward to the Scottish Government, the Parliament and the courts progressing with his recommendations.
We come to closing speeches. We have a little time in hand, so members should feel free to take an extra minute or so if they would like—before I make it compulsory. I call Mike Pringle first.
Thank you, Presiding Officer. In that case, I am glad that I was called first.
As many members have said, the review of the Scottish civil justice system by Lord Gill, the Lord Justice Clerk, is welcome but perhaps a little overdue. It was commissioned by the previous Scottish Executive more than two years ago—I add my congratulations to Cathy Jamieson—and I suspect that it is now broadly welcomed by all parties in the chamber.
We can all be assured that a review by one of the most respected legal brains in Scotland will be as thorough as it could be. It has 206 recommendations covering every aspect of our civil justice system. The need for reform was made clear in Lord Gill's introduction, and I will complete the quotation that the minister and Cathie Craigie started. It states:
"The practitioners of 100 years ago would have little difficulty in picking up the threads of today's system. In the Scottish civil courts, processes are still conducted as a paper exercise. Data keeping is done by manual counts"—
even in our computer age and
"The format of pleadings and many of their stylised formularies have not changed in over 100 years."
No wonder Lord Gill has had so much to say.
Currently, Scots can choose to sue in either the Court of Session or sheriff court as long as the value exceeds £5,000. Lord Gill was clear that this jurisdictional overlap between courts was a fundamental weakness in the Scottish system. He called for the Scottish Court Service, not litigants, to determine who should hear cases.
I am sure that all members have had constituents come to us to complain about civil court cases, and it is always just about their being able to access the justice that they want. Very often, they have already spent considerable sums of money on lawyers before they discover the real long-term costs and that the timescales are beyond them. Lord Gill also highlights many of the problems—the waste of resources in last-minute settlements, continuations, late starts, early finishes and so on—which result in more and more cost and wasted time for witnesses.
The report does a complete reconstruction job on the present civil system and proposes new radical reforms. The creation of a new district judge with a clearly defined civil jurisdiction that covers all civil litigation involving claims of up to £5,000 and residential property repossessions—quite a lot of which are happening at the moment—is completely new. That will free up a substantial amount of shrieval time to cope with the increased civil workload. Bill Aitken and Alasdair Allan, among others, made a very good case for that.
The proposed new Scotland-wide personal injury court in Edinburgh—we can debate later whether it should be in Edinburgh or Glasgow; indeed, Dundee might like it—and the single new court of appeal for sheriff cases, both criminal and civil, will help to speed up the process of justice considerably. It seems that that is broadly welcomed by the Law Society of Scotland and advocates, despite the suggestion that it might mean a loss of income for some lawyers.
It is impossible to cover all of a report of this size and with this number of recommendations, so I will pick up chapter 11, "Access to Justice for Party Litigants". Surely, this is all about giving quicker, more efficient and more reliable justice to people who want to access our civil courts for civil justice. As Robert Brown said, it is fundamental that citizens have the right to access justice. Of course, that can be done only in a court of law, but we have to speed it up.
Lord Gill wants more knowledge about the law and the civil justice system to be made available to the general public. Raising public awareness could save court time and allow litigants to better judge whether it is worth proceeding or even doing some of the legal work themselves. Stewart Maxwell highlighted those problems very well with his own personal example. We must perhaps assume that the cameraman in the case forgot to put film in the camera.
No.
Oh, he had film in the camera—he was just useless.
The Scottish Court Service has a website, but it should be more obviously aimed at the public and should contain all the information that is required to start or defend a case under the proposed simplified procedure. The SCS should have other direct links on that website to help make such decisions. As Lord Gill said, we can learn from others in that regard—for example, New Zealand, Ontario and British Columbia have such procedures.
Since 1997, there have been court advisers in Edinburgh sheriff court and five others. The Edinburgh one is managed by a citizens advice bureau. Lord Gill suggests that that process is very useful and should be developed and extended by the Scottish Legal Aid Board through in-depth evaluation of current provisions.
Finally, the report mentions McKenzie friends, which several members, including David Whitton and Stewart Maxwell, have referred to. For more than 30 years, party litigants in court in England and Wales have been allowed assistance, which has become known as the McKenzie friends scheme. I stress that the people involved are not lawyers and do not necessarily have any legal qualification. Lord Gill is right that the appearance of such a person should be at the discretion of the court, which would have to be satisfied as to the character and conduct of the person and, most important, be assured that they were not gaining financially from appearing in court with the litigant. In this issue, the minister would have the support of the Liberal Democrats.
I welcome Lord Gill's proposed reforms. They have a huge amount of merit, and I was grateful that the minister said that the current Government will proceed with parts of them as soon as possible. Future debates on Lord Gill's recommendations will be welcome.
First, I declare an interest in that I used to practise as a litigation solicitor, and I am retained on the roll of solicitors.
When I heard about this debate, I initially questioned the wisdom of holding it a mere seven days after the publication of the report—all 700 pages of it—because people would not have much opportunity to read it or, more important, digest its 206 recommendations. However, the debate has been useful, and the main bonus has been that it indicates early intent from the Parliament to take the report seriously. Moreover, unless I have completely misread the debate, Parliament will be united at decision time in the view that the report must be taken forward as quickly as possible.
Two points struck me in Lord Gill's introduction to the report. The first is the sheer depth and strength of the sense that reform is required—several members produced some very good quotations from the introduction in that regard. The second point is the urgency that Lord Gill clearly attaches to reform taking place. The Government and the Parliament must keep both those points in mind as we move forward.
The first area for suggested reform involves the structure of our civil court system. I suppose that the biggest proposed change here—at first blush, anyway—is to have a third tier for civil justice, with district judges dealing with cases of lower value in cash terms.
Many speakers referred to that proposal in the debate. In an intervention, Margo MacDonald raised the interesting question whether there should be a pilot initiative first, because she was worried that there could be a diminution of justice over time, even leading to claims going to the European Court of Human Rights.
I do not share those concerns so strongly for the simple reason that we are possibly alone among first-world countries in not having three tiers of civil justice. We have only two tiers that, to most intents and purposes, overlap. That has perhaps led to the number of blocks in the system that we have heard about. The proposal would be a big move for the Scottish legal system but, given all the other countries that have adopted a three-tier system, I do not think that the move would be as big as has been suggested.
Of course, the introduction of a third tier would mean far more sensible financial parameters: district judges would handle cases up to a value of £5,000; sheriffs would deal with cases up to a value of £50,000; and our most senior judges, in the Court of Session, would look at the big-ticket cases in cash terms as well as perhaps some lower-value cases that have a strong legal significance.
Specialisation is another issue that has been touched on, but the idea is not new to the legal profession. For several years now, the Law Society of Scotland has awarded accreditation to specialists within the profession. Most civil law firms already have specialists and are organised into departments. People are not considered simply as civil lawyers but as, for example, banking lawyers, property lawyers, corporate lawyers or insolvency lawyers.
As the Law Society recognises, the profession has already specialised, so the time has come for greater specialisation among the judiciary. Where such specialisation has been tried, it has been reasonably successful. Certainly, when I appeared a few times before the commercial court in Glasgow, I found the experience far better than when I had appeared before the civil court there.
Did Gavin Brown note Lord Gill's recommendation about the need for a generalist judiciary with a general experience of the Court of Session in particular? Is there not some tension between that and the proposal, which we all support, for specialisms in the sheriff court and at lower judicial levels?
Yes, I noted that recommendation, but I believe that both things are needed. As Robert Brown will know, anyone who wants to enter the legal profession must first complete a traineeship, which involves spending a good amount of time working in several areas of law prior to any specialisation. Although such a tension might appear to exist, I do not think that both outcomes cannot be achieved.
Another specific proposal is about the speed of court judgments. The review proposes a three-month rule, under which any judgment that takes more than 12 weeks will need to appear on a register with a statement of the reason why the judgment has taken longer and when the decision is likely to be issued. An interesting point is that the consultation included no specific question on the speed of court judgments, but respondents decided to comment on the matter because they felt so strongly about it. Lord Gill refers to the "indignation in the profession" about the sheer length of time that judgments can take. Just this week, I spoke to a senior lawyer who told me of one Court of Session case in which it took more than two years from the time when the proof finished to the issuing of the decision. That is simply unacceptable. His client told him that he will never litigate in Scotland again.
Others have touched on the proposal for a docket system, which is the idea that a case should be given to one judge from start to finish. That might not be easy to achieve in practice, but the proposal has enormous merit. Such a system already operates in Australia. The idea was not pursued under the Woolf reforms in England, but I think that people regret that decision now and a potential for change now exists there. A docket system would mean that the judge could truly understand the case instead of passing it from pillar to post.
Time is upon me, so I will conclude by saying that the Government should, as soon as it can, provide a timetable and a process for making decisions on the proposals. In doing so, it should balance two principles. First, as Lord Gill said, the review provides an integrated solution whose recommendations should not simply be cherry picked, especially given the fact that they were all agreed unanimously. Secondly, balanced against that consideration is the fact that some of the reforms will be far easier and quicker to implement than others and some, as Lord Gill has admitted, might have unintended consequences that will need to be bottomed out before they proceed. However, it is vital that we go forward with the proposals.
I am stating the obvious when I say that it is clear from today's debate that the Gill review has presented us with many challenges. Those challenges have been created by many years of custom and practice that, as members have indicated, have not always served the best interests of those who seek fairness in our courts. In their speeches today, members have made clear that the status quo is not an option.
We were right to embark on the review back in February 2007, to identify ways of improving how the courts work. Lord Gill's report should be seen in a positive light, but that does not mean that we agree with all the recommendations that he has set out. It is important that we have a constructive dialogue to move the issue forward. I will highlight a number of issues that the report raises. Like other members, I do not profess to have read every page of the documents that are before us, but I have had an opportunity to peruse them and to highlight some of the issues that are important in taking forward the review.
Like other members, I commend those who served on the Gill review group for their hard work and diligence over a protracted period; I recognise their efforts. However, on a less positive note, I was disappointed that the group did not include trade union representation. The STUC's response to the review made the important point that, as major users of the civil courts, with experience of representing their members, the trade unions would have been a useful addition to the group.
The report refers to overreliance on temporary or part-time resources. I concur with the many respondents to the consultation who pointed out that, in any working environment, a lack of experience or commitment can lead to poor decision making and case management. On the face of it, there is a conflict of interest in having a solicitor or advocate who appears in a court sit in the same court in a judicial capacity on a part-time basis. We need to investigate that issue and to take further evidence on whether there is such a conflict of interest. We should examine how we can take forward Lord Gill's recommendation that part-time sheriffs be used mainly to cover leave, illness and emergencies. However, like other members, I recognise that they are a useful resource and play a crucial role in providing cover throughout our court system.
The report contains a useful set of recommendations in respect of information technology advancements in our court system. I have visited courts, toured procurator fiscal offices and visited legal establishments on many occasions and have become increasingly aware of the fact that a badge of honour seems to be attached to having volumes of paperwork on one's desk; I wonder whether Lord Gill had a similar experience in a previous life. The report confirms that the management of paper files ties up important resources that could be invested elsewhere. The development of an e-filing system like the one in Singapore must be taken forward. As David Whitton and Bill Aitken mentioned, the report refers in detail to the benefits of conference calls in case management and to the positive effect of their use in commercial procedure in Glasgow sheriff court.
The report highlights some of the significant defences that exist in the civil court system. However, it does not go far enough when it says that we should encourage the use of IT systems. That could lead to patchy application of policy across the courts. Rather than encouraging the use of e-mails as a system of communicating with the courts—I am not convinced that that would work—we should consider making the use of IT systems compulsory.
Chapter 8 of the report refers to facilitating settlement and provides useful information on the current arrangements for the four pre-action protocols that exist in Scotland. The Digby Brown consultation response highlights the fact that the voluntary protocols that are currently in place have failed to address concerns about unrealistic pre-litigation offers. There can be no doubt that pre-action protocols are valuable and have a place in our justice system. We need all parties concerned to be willing to engage, but we also need to deal with those who do not display a willingness to enter into the general principles of pre-action protocols.
The report will have its critics and its plaudits. It is important that the Government shows leadership in pursuing reform, and we have committed to taking that forward with it. We should also ensure that there is balance in understanding the concerns that have been raised by those who are sceptical about the process.
Members will have received an e-mail from the Unite union, and I put it on record that I am a member. It raises concerns about the future of civil justice and seeks assurances in respect of access for workers. It would be useful for the Minister for Community Safety to provide clarification today that he is willing to continue engaging with stakeholders.
I call on the Parliament to support the addendum in the name of Richard Baker.
I am extremely encouraged by the consensual tone of this afternoon's proceedings, and I am sure that that will not go unnoticed in Parliament house. This Parliament is at its best when it is acting and debating in this way. The same tone was present during the previous civil justice debate, which was led by Cathy Jamieson back in 2006.
Before I turn to today's debate, it might be helpful to recap some of the calls that were made in the 2006 debate and what has happened since. Margaret Mitchell called for an arbitration bill—yesterday, we had stage 2 consideration of such a bill. Mike Pringle called for an increase to small claims limits—a fourfold increase was effected within six months of our taking office, thanks to the consensual approach that was adopted under the avuncular convenership of Bill Aitken in the Justice Committee. Today, Nigel Don has raised a point that is perhaps not in Lord Gill's report, about increasing further the privative limits in small claims and summary cause actions from £3,000 and £5,000 to a higher level—I think that the limit is £10,000 in England.
In the 2006 debate, Christine Grahame and many other members called for increased financial support for advice centres—earlier this year, we announced an additional £3 million of new funding. Mary Mulligan and Jeremy Purvis called for a broadening of access to civil legal aid, and many members have rightly stressed the importance of access to justice in today's debate. We have broadened access to civil legal aid. Now, nearly three quarters of households are potentially eligible, compared with 43 per cent—I am assured—before the changes were made. I understand from officials that applications for civil legal aid over the past six months were up by one third—33 per cent—compared with the same period last year.
In 2006, John Swinney called for implementation at last of sections 25 and 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, on rights of audience—that has now been done. Bill Aitken, the defence lawyers' friend, called for increased legal aid rates for solicitors—we have made those changes, too.
I hope that we can make further progress, acting together. Scotland's senior judiciary are recommending that course of action to us in the interests of justice and of the nation, with radical changes to the way in which the civil justice system operates.
I guess that I should follow Gavin Brown's declaration by saying that I am on the roll of solicitors, although I fear that my practising days are long over.
I absolutely recognise the picture that Lord Gill has painted of our civil justice system. I recognise it as a system that—sadly, and all too often—is characterised by delay, worry and expense. As Lord Gill opined in the second paragraph of his introduction to the report, "Reform is long overdue." Lord Gill also said:
"An efficient civil justice system is vital to the Scottish economy. It is also vital to the survival of Scots law as an independent legal system."
If it is the case, as Gavin Brown argued, that some major commercial operators in Scotland find the experience of litigating so dreadful, appalling, expensive and slow that they choose never to litigate here again, we cannot expect our legal system to have the right to survive for ever and in perpetuity. No one owes us—or our lawyers—a living. Our civil justice system must not operate for the convenience of lawyers, judges and insurance companies; it must operate for the client, the customer and the citizen.
Some members will instinctively and rapidly agree with some of Lord Gill's recommendations, whether they are for the decluttering of the Court of Session; judicial continuity through docketing—having a single sheriff see a case through to its end rather than having several sheriffs consider the same case, which causes disruption; specialised courts, which many members mentioned; multiparty actions, which Shirley-Anne Somerville talked about in a balanced way; simplified procedures in the lower courts; or the ability of party litigants to call on McKenzie friends. Each of those recommendations and many others will find advocates, who might be impatient for change.
I was encouraged that all members acknowledged that we must consider such matters extremely carefully. We will do so. As the cabinet secretary said, we have made the offer—and it has been accepted, thereby constituting a verbal contract, to which we will doubtless be held—to meet spokespeople from each party and individual members who have significant contributions to make. We will do so because we want to progress the issue in the consensual manner that has characterised the debate.
The Scottish Law Commission recommended in 2000 that a procedure for multiparty actions be taken forward, but the Court of Session declined to do so and concluded that current sisting—postponing—mechanisms seemed to work well and had dealt well with multiple actions such as Piper Alpha. Lord Gill's recommendation will no doubt give cause for the court to think again, as will developments that are likely in relation to forthcoming UK Government proposals on consumer protection in financial services. I think that I am right in saying that Lord Gill said that if multiparty actions had been possible, the handling of the slopping-out cases might have been easier and less expensive—I think that the cabinet secretary said in a statement earlier this year that there were 5,000 such cases. That is not to say that each claim cost hugely more than would have been the case if there had been multiparty actions. However, the cases might have been handled more speedily, as Shirley-Anne Somerville said.
Several members mentioned McKenzie friends. I am sure that David Whitton, who concentrated on the issue, knows from reading the Gill report that consultation responses on the issue were mixed. The Lord Justice Clerk has recommended that a supporter should be entitled to address the court, with the permission of the court, as is currently allowed in summary cause and small claims procedures in the sheriff court.
Cathie Craigie was concerned that we should not rush change and that the Parliament should be involved, and Paul Martin asked whether we will discuss with stakeholders how we go forward. We have an open approach, as members know, and we will engage with stakeholders as required. However, it is important to place on record the fact that, before the report was produced, there were 200 consultation responses. In other words, there has already been the most substantial and thorough consultation. It would be duplication to start that process again, although I do not think that anyone advocates that that is how we should proceed.
Ross Finnie talked almost exclusively about the Aarhus convention. I ask that he acknowledge that there are different legal views on the topic. We do not accept that the Scottish rules are not compliant with the Aarhus convention or the EU public participation directive. However, ministers have already raised with the rules council the potential for better application, specifically consideration of the use of protective cost orders. I expect that Ross Finnie, who is no doubt familiar with the extracts from the 700-page report, may favour the Australian model of proceeding. No doubt time will reveal all.
I bring the minister back to my comments about McKenzie friends. He mentioned that there was wide consultation on their use and varying reports about their effectiveness, but I am sure that he acknowledges that Lord Gill recommends firmly that they should be introduced. Indeed, they already work in jurisdictions south of the border, so I do not understand why we need to delay too long before we implement that recommendation.
Too many conversations are taking place in the chamber. I would like to hear just the minister.
David Whitton is right that the recommendation is that McKenzie friends should play a role in Court of Session actions. However, my understanding—my recollection of reading that part of the report—is that there is the caveat that it should be at the discretion of the judge who is handling the case to ensure that McKenzie friends are used appropriately for each case. It is not an easy matter to be a McKenzie friend and, particularly if the case is complex, there could be issues with the appropriateness of using one. I think that Lord Gill also states that, in family actions, it may not always be appropriate for a family member to act as a McKenzie friend because of the potential conflicts of interest.
Many members devoted their speeches to discussing the risk of denying justice to individuals. Cathie Craigie commented on that. Perhaps a suggestion crept in that there would somehow be a conflict between, on the one hand, adopting the recommendations of Lord Gill's report that seek to bring about greater efficiency, to reduce delay and to control costs and, on the other hand, ensuring continued access to justice.
I do not believe that that conflict exists in the way that it appeared to be presented. In fact, the opposite is the case. I submit that the system that we have at the moment causes huge, inordinate and unreasonable delay. That is precisely the point that Lord Gill makes. If one reads the chapter on inner house court procedure and the research by Dr Rachel Wadia, one sees that the estimates by QCs—and other advocates, presumably—of the length of time that it takes to conduct inner house court proceedings are so wildly out that, to be frank, the percentage success that they had in estimating how long it would take to argue cases before the inner house was lower than one would expect if one went into a bookie's and selected a horse at random from any race of the day. I hope that all members agree that that does not seem a satisfactory way to conduct a legal system. Justice delayed is justice denied and, for far too many people in Scotland, that has been the case.
I express the Government's grateful thanks to Lord Gill for the massive oeuvre that he has provided. Although we have had many weighty tomes provided to us over the years, I cannot recall any case in which we owe such a debt of gratitude. Thanks are also due to his three colleagues on the board: Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen. I am confident that the report will help us to deliver a modern, fairer and far more effective civil justice system in Scotland.