Judiciary and Courts (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-1717, in the name of Kenny MacAskill, on the Judiciary and Courts (Scotland) Bill.
I begin by acknowledging the considerable work of the Justice Committee, and of the Finance Committee and the Subordinate Legislation Committee, in preparing the stage 1 report on the Judiciary and Courts (Scotland) Bill. I also thank the Lord President, his judicial colleagues and the individuals and organisations who gave oral and written evidence. I do not underestimate the work involved in preparing such evidence, and I am sure that all members will wish to acknowledge that contribution. I am also grateful to the members of the judiciary and others who worked with my officials in the lead-up to the bill's introduction, to ensure that it offered a comprehensive and measured package of reform.
The Justice Committee's stage 1 report is considered and balanced. I am grateful to the committee for its detailed and careful attention to the issues, for the constructive tone of the report and for the committee's agreement to the general principles of the bill. I wrote to Bill Aitken on 8 May to place on record my response to the report. I shall not repeat all that I said in that letter, but I should like to say something about the main issues.
First, however, I will set out the context of the bill. The bill is an important constitutional measure. It is timely and significant that this Parliament is considering the relationship between the judiciary and the legislative and executive arms of Scottish government. I firmly believe that the reforms in the bill will strengthen those relationships and bring about improvements for all who come into contact with our courts. I am sure that we can all agree that a strong, independent judiciary, with the capacity and flexibility to meet the challenges and expectations of modern Scotland, is something that we want.
Our justice system is built on traditional values of integrity and fairness, and it has stood the tests of time. However, society has changed. Parliamentary scrutiny has increased, and so have public expectations. We need a modern justice system that has the capacity and flexibility to respond to those changes, while retaining the strong values on which its reputation has been built. The present Government and the previous Administration consulted extensively on the proposed reforms. Work was started by the previous Administration, with a consultation paper in February 2006. A white paper followed a year later. Twelve months on, we have built on that preparatory work. We worked with the judiciary and key interests and benefited enormously from their involvement as we developed the detailed proposals. The package of reforms that is before members will strengthen the judiciary as an institution and introduce practical reforms to improve the way in which the system operates.
The committee heard at first hand from many senior members of the judiciary, including the Lord President. I am keen to learn from the committee's report and I have said that I will lodge amendments at stage 2 to address the comments on whether the section on judicial independence is drawn too narrowly; on the appointment as temporary judges of Scots lawyers who have held high judicial office in Europe; and on the scrutiny of guidance for the Judicial Appointments Board for Scotland.
However, the debate is about the general principles of the bill, which, in the main, have received broad support. I welcome the committee's support for a scheme to deal with complaints about judicial conduct. To avoid any interference with judicial independence, the scheme will be under the control of the Lord President. I believe that the scheme will strengthen public confidence in the judiciary. There was only majority support in the committee for the proposal to have an independent reviewer form part of the scheme but, if that element were removed, I fear that we would lose public confidence. People who deal with authority figures need to be able to turn to someone independent.
I am also pleased that the committee supports our view that the balance of membership of the Judicial Appointments Board is right. I welcome the committee's conclusion that there is no reason to change the rule that the Lord President is not a compellable witness before the Parliament. The Lord President said in evidence that he would be willing to attend and assist Parliament when invited, which is an encouraging example of the co-operation that will make the proposed arrangements work.
I, too, welcome the continuation of the principle that the Lord President is not a compellable witness. However, if control of the Scottish Court Service transfers to the judiciary, as suggested in the bill, will the civil servants who support the SCS be compellable witnesses, or will their status change?
It has already been made clear that the chief executive will be the accountable officer. They will be accountable and, in the main, they would come to Parliament to answer the appropriate questions.
The committee has a concern about the administrative burden that the proposals may place on the judiciary. As a consequence, the committee members were not unanimous in their support for the new governance arrangements for the Scottish Court Service. The new arrangements will involve the service becoming a non-ministerial department within the Scottish Administration, managed by a governing body that will be chaired by the Lord President. We need the formality of an order under section 104 of the Scotland Act 1998 to achieve that status for the service, and the groundwork for that is in hand.
I understand the concerns that the additional responsibilities that will be conferred on the Lord President as head of the judiciary and as chair of the Scottish Court Service may overburden an already onerous office. However, care has been taken to ensure that the office of Lord President will not be overburdened. The Lord President will be able to delegate most of his new responsibilities, some of which, at least in part, he already carries out on a non-statutory basis. The sheriffs principal will continue to have the major task of running the sheriff courts and, in the new governance structure, the Lord President will be supported by the chief executive and the resources of the Scottish Court Service, including an enhanced private office.
It is fair to say that the Lord President, who welcomed the proposals, does not share the committee's concern about the scale of the administrative burden on him. He made it clear to the committee that he believes that his engagement in the governance of the Scottish Court Service is manageable and is a necessary part of his being head of the judiciary. I respect his judgment on that. I remind members that the creation of a judicially led court service was proposed specifically by the Lord President and his senior colleagues in response to the first consultation paper. They argued persuasively that, if they were to accept greater responsibilities for running the system, they should have control over the administrative support in carrying out those responsibilities. That is difficult to argue against.
It is right in principle to constitute the Scottish Court Service in the way proposed in the bill; the judiciary should have a leading role in the governance of the administrative service that it relies on to support its ability to dispense justice. It is right in particular that the Lord President, whom the bill charges with responsibility for the efficient disposal of business throughout Scotland's courts, should have a leadership role in the strategic management of the administrative service on which he relies for his ability to discharge that responsibility. The current situation, in which the judiciary relies on ministers for its administrative support, is a constitutional muddle with the potential for tension and future conflict. For those reasons, I believe that the proposals in the bill are right.
However, I recognise the committee's concerns and I am able to tell members that I have commissioned Douglas Osler to carry out an independent assessment of the impact on judicial time of the additional administrative responsibilities. Mr Osler's report on the Scottish Court Service, which is referred to by the committee in the stage 1 report, considered aspects of judicial administration, and he is therefore well qualified to carry out such an assessment. He has been asked to report in time for stage 2.
I also want to touch on judicial training. Among his new responsibilities, the Lord President will be given overall responsibility for the training of the judiciary. The committee recommended that training of the judiciary should be mandatory. People see mandatory judicial training as the answer to a particular problem or issue—such issues will always arise. I can understand that, and I sympathise with those who feel that their case could have been dealt with differently by the court.
However, I am clear that judicial training must lie in the hands of the judiciary. That the training of judges is managed by judges is an important element of judicial independence. It is important that the Lord President should be free from legislative constraints to devise a training regime that takes account of the interests of all litigants. The Lord President said that he wishes it left to him to put in place appropriate arrangements, which could include arrangements that verged on compulsion—that sounds to me pretty close to being mandatory. There is nothing to suggest that sheriffs and judges are not prepared to undertake training. Scotland is already well served by a progressive Judicial Studies Committee, which will be available to advise the Lord President in his new statutory responsibilities.
The bill provides a strong, coherent structure for a modern judiciary and the effective management of Scotland's court system. We have an opportunity to modernise the third element of Scotland's government.
I move,
That the Parliament agrees to the general principles of the Judiciary and Courts (Scotland) Bill.
The bill started out in a somewhat different form under the previous Executive. Following a call for evidence that resulted in 15 written submissions, the committee process included three evidence sessions. The witnesses were senior members of the judiciary, including the Lord President; the Sheriffs Association; the Law Society of Scotland; the Faculty of Advocates; the chairman of the Judicial Appointments Board for Scotland; representatives of the Scottish Court Service; and the Public and Commercial Services Union. We also had the benefit of evidence from Victim Support Scotland, Lord McCluskey and Professor Sir David Edward. The sessions concluded with evidence from the Cabinet Secretary for Justice.
The basic principle that differentiates a liberal democracy from a dictatorship is that of judicial independence. Although it is difficult to envisage circumstances pertaining in Scotland in which that principle would come under threat, the most valuable aspect of the bill is that it enshrines judicial independence within the legislative process and strengthens the common-law position. The committee view was unanimous in that regard, and although members had differing views about some of the issues that arose during our considerations, it was felt strongly that judicial independence is a vital component—indeed, a cornerstone—of the governance of any jurisdiction.
Having enshrined judicial independence, the bill moves on to consider the support services for and general administration of the courts. Basically, in future, the buck will stop with the Lord President, who will be responsible for the smooth running of business in Scotland's courts.
It is fair to say that the committee has some concerns about the time commitment that will be necessary for the Lord President to carry out administrative functions as opposed to judicial ones. A Lord President achieves that office as a result of considerable experience and judicial knowledge. That knowledge should be used as much as possible in a judicial function, presiding over civil and criminal appeals, and the committee had genuine concerns about the time commitment that the Lord President might find necessary for administrative functions, albeit that we acknowledged the power of delegation in the bill. I am pleased that the cabinet secretary has recognised those concerns, and we look forward to hearing the result of Douglas Osler's review.
The committee also expressed a view that the Scottish Land Court should be included in the bill. Again, the cabinet secretary concurs, and I note that he will legislate to that effect at a later stage, bearing in mind outstanding matters under other headings.
The Judicial Appointments Board for Scotland was discussed in some depth, and the evidence on it was particularly interesting. It is, of course, necessary to place the board on a statutory footing, which is what the bill does. The previous system for judicial appointments was archaic, opaque and governed by the establishment. It had everything wrong with it—apart from the fact that it seemed to work.
Having said that, nobody seriously suggests other than that the Judicial Appointments Board is the way forward, although there were some concerns about its operation. No one suggests that it has done a bad job, but the committee has stressed that the assessment system must be as thorough as possible, and there has been some concern that decisions are taken on rather narrow grounds. Although it is clear that, in the course of any year, there will be a large number of applicants for a limited number of potential appointments, the Government and the Parliament must be assured that the assessment system is as thorough as possible. In particular, the committee recognised Lord Osborne's point that the board did not seem to seek information that would have been highly valuable—for example, information from people who have had first-hand dealings in a court set-up with individual applicants.
There was some discussion about the proposal for the number of lay members on the board to equal the number of judicial and legal members. The members of the judiciary who gave evidence were in favour of additional members being drawn from the courts—a view that Victim Support Scotland did not share. That argument may be revisited in time, but the committee took the unanimous view that lay contributions to the selection process were essential.
We also took evidence on diversity. The arguments on that were best encapsulated by Lord McCluskey, who stated that there was merit in the Government ensuring that more people acquired the skills necessary to be a judge. At the same time, he stressed that affirmative action has no place in the selection process. There can be no doubt that, as our society changes, there will be a greater number of applicants for judicial appointments from ethnic minorities, and I expect that those sections of our society will be represented on the bench, just as has happened with women. That is a good thing, but it is necessary to underline the committee's conclusion—which is based on all the evidence taken—that merit must be the criterion for selection. That is an absolute.
Scotland has been and is well served by its judiciary; problems have been virtually non-existent. Two sheriffs have been removed in living memory, and judicial conduct should not overly concern us. The bill sets up a transparent and fair system and, even though there were some reservations—and, indeed, objections from the Sheriffs Association—the committee took the unanimous view that what is proposed in relation to judicial conduct is appropriate.
There were perhaps some different views on complaints. We all agreed that there has to be a complaints system and that the Lord President should have responsibility for putting in place such a system. It is my view that, although the public should have every opportunity to complain about judicial conduct—as distinct from judicial decisions, of course—we should not use a sledgehammer to crack a nut. I am perfectly prepared to leave the matter to the Lord President, and I would not be happy if some elaborate bureaucratic procedure involving a judicial complaints reviewer was set up. As Lord Osborne rightly said, if we cannot trust the Lord President, whom can we trust?
In some ways, the issue of the transfer of responsibility for the Scottish Court Service is related to the committee's concerns to which I referred earlier. In his letter to the committee of 8 May, Mr MacAskill made some effort to answer the committee's concerns. I am sure that individual members will consider their position before stage 2. However, there would be a degree of inconsistency were we to put the Lord President in charge of the courts but detach the administrative process. We all have to be satisfied that what is being proposed will, in the end, ensure the smooth running of the courts while maintaining the high standards and the high level of time commitment that judges are available to give. A process of delegation will no doubt be carried through, but we still require reassurance.
The committee was extremely well served by the witnesses who appeared before us. We are very grateful to so many people for their time and effort, which enabled us to produce what I think is a measured report. The committee is, as ever, grateful to the clerks, Douglas Wands, Anne Peat and Euan Donald, and to the administrative assistant, Christine Lambourne, for all their efforts.
The legislation has some way to go. It might not attract great public interest, but the committee is conscious that it is a vital piece of legislation. The decisions that are taken today and at stages 2 and 3 will form the way in which the Scottish judicial system operates for many years ahead. The committee is determined to get it right—we all appreciate the consequences of failing to do so. The committee is pleased, at this stage, to recommend that the general principles of the bill be agreed too.
On behalf of Labour members, I associate myself with the remarks of the Justice Committee convener about our support staff. We were served well, and we received high-quality stage 1 evidence. This is a once-in-a-lifetime opportunity to improve how justice is delivered. The previous coalition Government considered the issue, and we now have the opportunity for the bill to proceed.
The bill proposes that the Scottish Court Service will no longer come under the authority of the Cabinet Secretary for Justice and that responsibility for it will be transferred to the Lord President, as the cabinet secretary said. The issue exercised the committee a great deal—both on the record and off the record. Labour members are not convinced that there is evidence to suggest that the status quo does not serve us well. I do not recall receiving great volumes of correspondence or inquiries from constituents raising concerns about how our court services are managed at the moment. We must examine further the proposal for such a change amid a lack of evidence proving that, given his current responsibilities, the Lord President will be able to accommodate the additional demands. There is a need for more objective, rather than subjective, evidence to be provided to make the case in respect of those demands.
We welcome the commitment that the cabinet secretary gave on the review. However, we would welcome the committee receiving further evidence, in some form, on the review's terms of reference, to ensure that the review is carried out objectively, deals with the principle of whether court services should be managed by the Lord President and addresses the issue of additional capacity, which exercised committee members on a number of occasions, both on the record and off the record.
Chapter 4 of the bill relates to judicial conduct and proposes the role of judicial complaints reviewer, which we support fully. I simply cannot agree with the Lord President, who said that there was no need for a complaints reviewer and cited the fact that complaints can be taken up further at the Court of Session. Surely we should take every opportunity to avoid the possibility of further legal action and welcome the prospect of having an independent complaints reviewer.
I welcomed the evidence that Lord McCluskey gave the Justice Committee. I respect Lord McCluskey, given his experience over the years, and found his contribution most informative and helpful. However, I do not agree with some of the points that he made in his evidence. For example, he suggested that a number of individuals simply would not be qualified to judge complaints about procedures. I can think of a number of highly respected individuals who have considered procedural issues over the years. We are well served by ombudsmen, such as our current Scottish Public Services Ombudsman, and we should respect the roles that they carry out—we in the Labour Party have certainly done that. I see no reason why an independent system cannot be put in place to ensure that the public confidence to which the minister referred is embedded in the system.
Under the bill, to whom does the independent judicial complaints reviewer report if they are unhappy with the result of their investigation? My understanding is that they simply report back to the Lord President.
I confirm to the member that the Lord President will be consulted when the reviewer is appointed by the Cabinet Secretary for Justice. The issue is how to ensure that the procedures are carried out properly. The SPSO and other ombudsmen report back to the authority concerned. The system that we are discussing is designed to ensure that the individuals learn from the experience and take into consideration where procedures were not carried out properly. The judiciary has a genuine opportunity to show humility in accepting and learning from such a system to ensure that there is no recurrence.
Probably the most controversial recommendation in the committee's report was on the issue of mandatory training. We in the Labour Party support strongly the case for mandatory training. A public petition was submitted on the issue, relating it to cases in which there is evidence from children. Given that a great deal of sensitivity is required in such cases, it is simply unacceptable that no arrangements are in place to ensure that the judiciary has mandatory training in that area. We call on the cabinet secretary to reconsider his position, given the symbolic gesture that we would make in sending the clear message that we expect mandatory training to be put in place.
We welcome the bill and ask the cabinet secretary to take seriously the issues that the committee raised and the recommendations that it made in its stage 1 report. I look forward to stages 2 and 3.
I thank the Justice Committee for its work in connection with the bill and its preparation of the stage 1 report.
Democracy in any country can flourish only if its citizens have access to an independent judicial system—Scotland is no different. I am pleased to contribute to the debate, because I believe that the bill will solve some of the problems with the current judicial system.
The Scottish Conservative party—and, I am sure, everyone in the Parliament—welcomes any proposals that promote judicial independence, because it is of the utmost importance that the judiciary of Scotland remains independent. As we have heard from the convener of the Justice Committee, the principal issue surrounding the bill is judicial independence.
Historically, by ensuring that the pay of judges was not within the whim of the Crown and by providing security of tenure for holders of judicial office, a degree of judicial independence from the Government has always been provided. A number of other conventions within the common law have protected the independence of the judiciary. However, in more recent times, there has been a trend within the United Kingdom to provide statutory guarantees of judicial independence. The bill will continue that trend in Scotland by focusing on four main policy areas: judicial independence itself, the appointment process, the courts and the arrangements for the Scottish Court Service. I will briefly touch on each of those.
Part 1 of the bill sets out the requirements to guarantee that the judiciary remains independent. It will be the duty of the First Minister, the Lord Advocate, the Scottish ministers and any other persons who have responsibility for matters that pertain to the judiciary to uphold its independence. They should not try to influence judicial decisions. They are to support the judiciary and to have regard to its needs to carry out its functions efficiently.
Part 1 also provides a statutory guarantee of judicial independence. The Scottish Government concluded that
"a statutory statement underlining its commitment would be a powerful and obvious reminder of the constitutional significance of judicial independence."
That is to be welcomed. The guarantee is much like the guarantees in section 3 of the Constitutional Reform Act 2005 and section 1 of the Justice (Northern Ireland) Act 2002 that ensured judicial independence for England, Wales and Northern Ireland.
Part 2 establishes the Lord President as the head of the Scottish judiciary, and places many responsibilities on him. Those responsibilities may be too much. We fear that they will slow down the judicial process for many cases, and will require the Lord President to dedicate much more of his time to administrative work. We therefore welcome the Cabinet Secretary for Justice's announcement that that will be looked into.
More important, part 2 sets out the model for the Judicial Appointments Board for Scotland. The board is another important way to ensure that the judicial bench remains independent, and the convener of the Justice Committee has commented already that it is a vast improvement on the current system. The board is to be completely independent of the Scottish Executive, thereby ensuring that the judiciary will remain independent. I hope that the new selection process that the bill anticipates will be made more transparent, and that judges will be selected based solely on merit, taking into account interpersonal skills and whether they are of good character. That must be welcomed.
Part 2 also outlines provisions on the fitness of judges and on giving the public a means of voicing complaints of misconduct regarding the behaviour of judges and sheriffs. Although we agree that there is a need for a form of complaint, that may not be the best way to proceed. The general public might view the process in the bill as another appeal process, which it most certainly is not. The public should have the ability to complain and should easily be able to understand the complaints process and feel comfortable using it, but we share the Justice Committee convener's concern that we should not take a sledgehammer to crack a nut on that issue.
Part 3 places yet more responsibilities on the Lord President—responsibilities that have so far been within the remit of judges and sheriffs. Although increasing the efficiency of the court system is an important step towards judicial freedom, the increased burdens on the Lord President could detract from the speed with which some cases are dealt. Overall, however, streamlining the court system will make it easier for the public to access it and make the judiciary more independent.
The Scottish Court Service will become an entirely new body under the bill, and part 4 outlines how that will be achieved. The new SCS will be under the Scottish Administration, but it will not be part of the Scottish Government or under ministerial control, which will ensure the independence of the judiciary and should be welcomed. The new SCS will provide administrative support to the courts, the judiciary of those courts and other specified people. Its principal function will be running the court service in Scotland. However, we are concerned about such a dramatic shift of power. The switch will move all the authority away from the Scottish ministers and give it to the SCS. I urge the cabinet secretary to think carefully about such a move. Part 4 places yet more responsibilities on the Lord President.
In conclusion, the Judiciary and Courts (Scotland) Bill will ensure that the judiciary in Scotland remains independent. Independence within the judicial process is essential for a free and democratic society to operate. I and my party welcome any proposal that furthers judicial independence, and we are happy to support the Government's motion.
Due to my recent illness, unfortunately I was absent from some of the Justice Committee's deliberations on the Judiciary and Courts (Scotland) Bill. I compliment my committee colleagues on the very good job that they have done and the excellent stage 1 report that they have produced.
The Lord President rightly said that the bill contains draft law of "considerable constitutional significance". Although we support the general principles of the bill, it is imperative that we continue to scrutinise it closely. I have reservations about some aspects of the bill, which I will try to outline in my two speeches—opening and closing. I know that members will be pleased about that.
I thank everyone who gave evidence on the bill to the Justice Committee. In particular, I thank the Lord President for his appearance before the committee. Members appreciated his attendance and were grateful for his unique perspective and contribution.
To a great extent, the bill builds on a series of reviews and consultations that were undertaken by the previous Administration. The Liberal Democrats welcome the fact that the Government is taking matters forward, and we welcome the package of reforms.
It is essential that people have confidence in the justice system. We need to modernise the organisation of the judiciary and ensure its continued independence. The separation of powers is a key principle of our system of governance, and it is fundamental to our constitutional arrangements and the idea of fairness under the law.
Judicial independence is already entrenched in the common law, but enshrining it in legislation will send a powerful message about its significance. Having listened to and read the evidence, I believe that, on balance, the statutory commitment is complementary rather than detrimental to the common law. That commitment is a key aspect of the bill, but it is not enough to cover comprehensively the range of ways in which individuals or Government might seek to influence the judiciary. It would be a matter of serious concern if new legislation in any way narrowed the scope of judicial independence, so I am pleased that the Cabinet Secretary for Justice has recognised that the commitment might be too narrowly drawn and pledged to introduce amendments to address the issue at stage 2.
Most of the evidence supports the unification of the judiciary with the Lord President at its head. In general, we welcome the fact that the Lord President will be responsible for the efficient disposal of business in the Scottish courts; representing the Scottish judiciary to ministers and the Parliament; laying written representations before the Parliament in respect of the administration of justice; the welfare, training and guidance of judicial office-holders; and the establishment and conduct of a judicial complaints scheme. However, there is concern about that significant workload. We are all keen to ensure that the administrative burden that will be placed on the judiciary—and particularly on the Lord President—is fully appreciated and that the required support is put in place. I therefore welcome the fact that the cabinet secretary has ordered an urgent review of the likely commitment of judicial time that will arise from the bill. I am glad that he accepted the Justice Committee's recommendations in that respect and I look forward to the results of Douglas Osler's review. He is well placed to undertake the role, because he undertook one of the previous reviews.
One of the most important provisions in the bill is the setting up of a formal process for complaints against the judiciary, although, as we heard from the Justice Committee convener, the number of complaints in the past has been relatively low. It must be made clear to the public that the process will consider complaints about conduct and procedure, not complaints that relate to disagreements or disappointment about particular judicial decisions.
The bill proposes the creation of a judicial complaints reviewer. As we have heard, there has been some disagreement about that. However, there is merit in an external view being taken on how the judiciary handles complaints about itself, and I am sure that the public at large agree. The Lord President rejected the need for a reviewer on the ground that complainants can take their concerns to the Court of Session for judicial review, but the vast majority of people would be unlikely and financially unable to take that option.
The bill also proposes that responsibility for judicial training should pass to the Lord President. The chair of the Judicial Studies Committee, Lord Wheatley, has observed in previous annual reports of that body that insufficient training is offered, particularly to new judges, and the Sheriffs Association supports the view that training is inadequate. The Justice Committee considered the Mothers for Justice Campaign's petition on judicial training, which called for mandatory training for sheriffs who deal with child custody cases. Representations on the issue have also been made by Victim Support Scotland and Scottish Women's Aid, which noted that it is important to provide adequate training for judicial professionals in order to provide the best possible support for vulnerable witnesses, and that input is required from relevant specialist organisations. I share the view expressed in the Justice Committee's report that confidence in the judiciary would be enhanced by mandatory training.
As Bill Aitken said, the Justice Committee also heard concerns about the functioning of the Judicial Appointments Board, regarding how it sources information about candidates and the length of time that it takes to make judicial appointments. The way in which judges are appointed must be entirely free from inappropriate influence, and be clear and transparent. I welcome the placing of the board on a statutory footing. I hope that the concerns that were raised with us will be considered and addressed.
It is important to have a balance on the board between representatives of the legal and judicial professions, and lay members. Sir Neil McIntosh, the chairman of the board, emphasised to the Justice Committee:
"The board's current composition is balanced and representative … there is no question of any particular group—or of any member in any particular group—becoming dominant."—[Official Report, Justice Committee, 11 March 2008; c 621.]
Those of us who have been on the Justice Committee know that the different interest groups within the professions have powerful voices. I am convinced that the voice of ordinary citizens must be heard alongside them.
I accept that the effective administration of justice would be improved by having even closer links between the Scottish Court Service and the judiciary. I welcome the fact that the board of the Scottish Court Service will contain a combination of legal and judicial representatives, and lay people. However, it is fair to say that there were misgivings in committee about the proposal to set up the Scottish Court Service as a separate body corporate rather than maintain the present situation. I will return to that issue in my second speech, so I hope that members will look forward to it.
We now move to the open debate. Speeches will be a tight six minutes.
I concur with earlier comments about the work of the Justice Committee clerks and their assistance during the evidence sessions on the bill.
I am grateful for the opportunity to speak in this stage 1 debate. While the bill covers many aspects of the current and prospective justice systems, I want to start with an issue that has been on all our minds over the past week: independence—however not the national question, but the independence of the judiciary, which has the potential to be contentious.
The recent World's End pub murder trial has been cited as evidence for having more extensive judicial independence. Indeed, the Law Society of Scotland and the Society of Solicitor Advocates have gone on record to state that they are in favour of more extensive judicial independence. It is widely acknowledged, too, that in order for our judiciary to gain a higher state of independence, an appropriate management structure must be put in place.
Part 1 of the bill deals with judicial independence. Its provisions will create for the first time in Scotland a statutory statement of judicial independence. While it is widely thought in court circles that there is—or should be—judicial independence, stating it in statutory form is surely more favourable than having an informal arrangement. In keeping with the fair and democratic practices to which we have become accustomed, courts should have as much judicial independence as possible. I am pleased, therefore, that the Lord President, Lord Hamilton, has stated that he strongly supports part 1.
The Justice Committee asked the Government in our stage 1 report to reassess whether the judicial independence section of the bill is too narrowly drawn. In his response, the cabinet secretary agreed to consider that and lodge an amendment at stage 2, which I am sure will be welcomed.
The bill addresses the responsibilities of various affiliated parties, including ministers, the Lord President and the Lord Advocate. The current situation places the Lord Advocate in a position of responsibility, alongside ministers, for the organisation of the supreme courts. However, it is not unreasonable for the Lord President to gain statutory responsibility for administrative activities in the current court structure, which the bill will implement—indeed, the Lord President and his colleagues currently undertake many of those activities. I concur with the view that those responsibilities should come under a statutory agreement, in order to create clear and official boundaries for all concerned in the running of the court services.
The Justice Committee raised concerns about committing more judicial time to administrative activities, therefore I welcome the cabinet secretary's decision to request an independent review by Douglas Osler of the measures that deal with administrative activities. I look forward to reading the outcome of the review and to our making an informed decision on the issue at stage 2.
A further area of interest is the Justice Committee's recommendation that judicial training should be mandatory. There was debate about that, to which Paul Martin alluded. I am sure that the issue will be raised again in the debate. The Justice Committee's report is clear that the Lord President should have responsibility for making and maintaining training arrangements for judicial office-holders. The committee also recommended that such training should be mandatory, to improve confidence in the judiciary. The cabinet secretary's response to the committee's report says that all training should be up to the Lord President. I am sure that we will discuss that during stages 2 and 3.
My final point is about statistical data in the Scottish Court Service. I recently had an enlightening meeting with representatives of Children 1st, at which we discussed the lack of statistical data collected by the Scottish Court Service about children. I will lodge questions later today about that, so I do not expect an immediate reply. In this technological age, statistics are vital to inform future decisions. I am therefore sure that such evidence would enable the Scottish Court Service to plan with greater confidence.
I am pleased to support the bill.
As the Justice Committee's deputy convener, I support the motion in the Cabinet Secretary for Justice's name. Like other committee members, I thank the clerking team and Scottish Parliament information centre staff for their sterling efforts to support our scrutiny of the bill.
I welcome the first piece of justice legislation from the Scottish National Party Government in this, the second year of its tenure. The bill's policy thrust is progressive and its principles are worthy of support throughout the chamber. Its introduction follows a programme of reviews and consultations that the previous Labour-led Executive initiated.
In the short time that is allotted to me, I shall mention a few of the bill's noteworthy provisions. The much wider range of administrative and organisational responsibilities that the bill will place on the Lord President has been discussed. I welcome the fact that, in his evidence, the Lord President stressed that his primary function will remain judicial, which is right and proper. However, the Justice Committee was correct to make clear its significant concerns about the administrative burden that could be placed on judicial postholders and to seek independent quantifiable evidence about the impact of such changes on judicial time.
No one wants administrative pressures to diminish the judicial role. I am therefore pleased that Mr MacAskill has asked for an independent review under Douglas Osler. That is the type of listening approach that the Justice Committee would welcome in all its dealings with legislation that the SNP minority Government's ministerial team introduces.
I respect the view that the Lord President expressed in his evidence that a judicial complaints reviewer "is unnecessary". However, like the majority of Justice Committee members, I do not feel that establishing such a post will undermine confidence or trust in the judiciary. Rather, I agree with Victim Support Scotland, which said:
"There needs to be a vehicle to enable people to make complaints … That is an expectation in today's business world, but it is not readily accessible in relation to the judiciary."—[Official Report, Justice Committee, 18 March 2008; c 656.]
Given that the reviewer will—correctly—concentrate on process and not on reviewing judgments, I see little to fear in having such a post and much to commend it.
In his letter of 8 May to the Justice Committee's convener, Mr MacAskill merely noted that support for the proposed role was not unanimous. I hope that that does not signal a weakening of the Government's position as expressed by Mr MacAskill on 25 March. After hearing him today, I do not think that it does. However, I hope that in his summation he will offer the committee crystal-clear comfort on that point.
It is unfortunate that I need to record my disappointment that, although the cabinet secretary acknowledges in the annex to his letter to Mr Aitken the Justice Committee's recommendation at paragraph 66 that on-going training of judicial office-holders should be mandatory, he says that it is
"a matter for the Lord President to determine whether judicial training should be compulsory and, if so, what topics should be covered by judges."
Mr MacAskill's timid approach is highly uncharacteristic and is, to be frank, unacceptable to Labour members. I ask him to think again about that aspect before stage 2.
The final aspect of the bill that I want to touch on is the judicially chaired Scottish Court Service. The cabinet secretary will be aware that there are still reservations about the removal of the Scottish Court Service from the direct authority of the Scottish ministers. My earnest hope is that those reservations will not prove to be insuperable. There is merit in the cabinet secretary's observation to Mr Aitken that
"judicial independence is best protected by judicially-led governance of the courts' administration".
I hope that, even though the bill seeks to change SCS's status to a body corporate, Justice Committee members can be persuaded that paragraph 132 of the policy memorandum provides a sufficient safeguard, so that in the event of a
"serious failure by the SCS to carry out its functions the Scottish Ministers may by order made by statutory instrument provide for those functions to be carried out instead by them."
I believe that, in the jargon, that is called a default clause, and I hope that it provides sufficient comfort. I tend towards the view that it does, but we will listen to members as we proceed with stage 2 discussions.
Given that time is tight, and with those reflections on the bill, I commend its general principles to the chamber.
I welcome the opportunity to speak to the stage 1 report on the Judiciary and Courts (Scotland) Bill and the cabinet secretary's opening remarks. I acknowledge that one of the guiding principles of the bill is to enhance the independence of the judiciary, and independence is always a timely and worthwhile debating point.
Production of the stage 1 report was assisted by a significant number of witnesses who gave evidence to the Justice Committee. I welcome the opportunity to place on the record my appreciation of them, the support staff, the clerks, the Scottish Parliament information centre and other members of the committee for assisting me in considering the bill.
The independence of the judiciary is a principal consideration, and it dates back to the consultation paper "Strengthening Judicial Independence in a Modern Scotland", which was published in February 2006. The benefit of being a member of the Justice Committee is that the evidence-gathering process highlights a need to investigate matters that could fall below the radar. The bill introduces a degree of much-needed modernity to the administration of justice in Scotland. The old adage that justice must be seen to be done is important in introducing an element of glasnost into the system.
It is worth noting that the bill provides a statutory basis for the Judicial Appointments Board and details its principal functions. A transparent process for appointing judges will, I hope, ensure that the public have confidence and that the system effectively dispenses justice on a daily basis. In evidence to the Justice Committee, there was support for modernising the current arrangements and replacing an essentially ad hoc arrangement, based on custom and practice, with one that places the Judicial Appointments Board on a statutory footing.
It should be noted that written and oral evidence to the committee presented several critiques of the Judicial Appointments Board that had been made over the years. The most notable critic in recent times was Professor Bonnington, who stated in the Journal of the Law Society of Scotland in May 2005 that some lawyers
"of less than average legal ability"
had been appointed to the bench. That might or might not be overstating the point, but it would be wrong to dismiss such opinions out of hand.
The Judicial Appointments Board is important, and its role in delivery will increase over the years. Judicial independence is highlighted in annex A to the stage 1 report. The Scottish Government's response stated:
"One of the avenues for securing the independence of individual judges relates to the method by which judges are selected."
Another key aspect of the Justice Committee's deliberations was the governance of the Scottish Court Service. The backdrop is that, currently, the chief executive of the Scottish Court Service is responsible solely to ministers and the Parliament. The Osler review that the previous Administration established in June 2005 set in train a process of reviewing the governance of the courts and the future relationships among the Scottish Court Service, the judiciary and the Government. The step change that the Osler review proposed brings us up to date with the bill, which envisages that the SCS will have thirteen members and will be chaired by the Lord President. The bill also provides that the SCS will have responsibility for policy implementation and will be independent of the Scottish ministers. That said, the bill proposes that the SCS will operate according to a corporate plan that is agreed by ministers.
The Justice Committee had a vital discussion on wider accountability, particularly in respect of section 66(2). That point is also stated in paragraph 209 on page 35 of the stage 1 report. In questioning witnesses and reviewing the written evidence, my overriding aim was to ensure that, together with the enhanced independence of the judiciary and quasi-judicial bodies, the bill provides accountability. Some people might say that, in real terms, accountability will be diminished, because the bill will establish the Scottish Court Service as a body corporate headed by the Lord President. It is worth noting that the Lord President is not compelled to give evidence to the Parliament, given his legal standing under the Scotland Act 1998. Equally, the present arrangements for the Scottish Court Service are not satisfactory. As stated in paragraph 209, some members remain to be convinced on the issue.
The Justice Committee's report has highlighted the need to consider other issues relating to the judiciary, including my point about accountability. The committee has been up front and centre about the need for a mandatory requirement for the judiciary to undertake training, as other members have pointed out. Another issue is the need to ensure that the bill stands the test of time. The resulting act must ensure that the role that the current Lord President—Lord Hamilton—sees for himself can be applied to future Lord Presidents.
I commend the Justice Committee's stage 1 report and I look forward to examining the bill further as it proceeds through Parliament.
As other members have reminded us, the Judiciary and Courts (Scotland) Bill is the first piece of legislation that the Justice Committee has considered in this the third session of the Scottish Parliament. Like other members, I thank all those who were involved in giving evidence to the committee and in supporting committee members in their deliberations. The bill has not generated controversy, but the committee felt that it raises several issues that are important enough to merit detailed scrutiny and to draw to members' attention. As time is limited and as it is impossible to touch on every aspect of the bill, I will limit myself to highlighting just three issues on which I would like further debate and, if need be, amendment to make the bill absolutely clear.
First, as the Cabinet Secretary for Justice said, our justice system is built on the values of independence, integrity and fairness. Although there is no question about the judiciary's current independence, part 1 of the bill provides a statutory guarantee of the continued independence of the judiciary in Scotland. Some commentators have questioned the necessity for such a statutory guarantee. Indeed, some committee members posed the same question during our deliberations and evidence sessions. However, on balance, the committee accepted that in principle it could support such a guarantee, symbolic or otherwise. In doing so, we have asked the Government to go further by including the Parliament among those who are required to uphold the independence of the judiciary. I am hopeful that our recommendation will find support among members and I am grateful that the cabinet secretary has acknowledged the issue.
Secondly, the bill provides for a judicial complaints reviewer. The committee heard evidence that the number of complaints that are received at present is small and that the existing process for making a complaint is not clear, even to those who work in the system. After considering the proposal for a judicial complaints reviewer carefully, I am happy to support it, but details of the reviewer's role must be completely clear. People must know that if they want to use the reviewer to make a complaint, the complaint must be about the process and not about a judicial decision. That will be clear only if the public are aware of and understand fully the reviewer's role. It is the Administration's responsibility to ensure that adequate resources are available to facilitate that understanding. The figure of £24,000 is mentioned in the financial memorandum, but I believe that it is a fantasy figure and is well below what will be required properly to resource the service. I ask the Cabinet Secretary for Justice to reconsider the matter, as I expect that we will want to return to it at a later stage. I hope that he will be able to provide the Justice Committee with further information.
Finally, I express concerns about part 4 of the bill—the proposal to establish a body corporate to be known as the Scottish Court Service. Other members have touched on the issue this afternoon. The proposal represents a significant change to the current arrangements in Scotland and moves responsibility for running the court service from Scottish ministers to the Scottish Court Service, with the Lord President chairing the board and the chief executive of the organisation acting as the accountable officer.
I believe strongly that running our court service is a key responsibility of Government. Although the bill requires the Scottish Court Service to report to ministers on various matters and to have regard to guidance issued by ministers when carrying out its function, I am not convinced that it is in the public's best interest for the Administration to hand over that important function to an unelected body. This is not an area in which ministers should abdicate their responsibilities. I believe that the people I represent support my view, which is that ministers should be responsible to Parliament and the people for the administration and delivery of our court service. So far, I have heard nothing that has convinced me otherwise. However, I look forward to more detailed discussion and debate in the area and expect that amendments will be lodged as the bill progresses.
I am happy to support the general principles of the bill today, but I look forward to continued discussion with the Justice Committee and the cabinet secretary, so that the bill is able further to modernise our justice system.
I intend to sweep up some remaining issues; necessarily, I will be brief.
First, section 1 of the bill relates to the common-law offence of interfering with the judiciary. Eminent people have given plenty of evidence that what we include in the new statute will not affect the common-law offence, but I still wonder whether we should not say what we mean. I have not yet been persuaded that there is any reason for us not to do so, given that we will not revisit the issue for a few centuries.
Secondly, I draw members' and the Government's attention to Lord McCluskey's comments in paragraph 25 of the Justice Committee's report on the various other ways in which ministers might interfere with the judiciary and affect judicial independence. I am grateful to the cabinet secretary for indicating that he will revisit the point, but there is a substantial issue that needs to be considered. It is not clear to me whether that should be done through the ministerial code or by changing the text of the bill.
Thirdly, on whether the Parliament should be bound by section 1, it is difficult to write a statute that binds Parliament, but it is not difficult to include a provision that binds individual MSPs, and that would be a good thing to do. We are sometimes tempted to rush to criticise because we think that that is what we should do, but telling members that they should reflect on what they want to say and comment only very much later would be a good idea.
I am grateful to Margaret Smith for talking about training in more detail than other members have done, which means that there is no need for me to comment on that matter.
On the confidentiality of the information that is received by the Judicial Appointments Board, I point the cabinet secretary and members in the direction of information received from the Law Society of Scotland, which is concerned that making the misuse of such information only a civil matter is probably not the way forward. It wonders whether there should be a criminal offence in relation to the misuse of such information, which would seem to be rather more effective.
There is some slight difficulty around the issue of the complaints reviewers. We need to be clear that the Lord President will be doing the reviewing of complaints and that all we are asking the other reviewer to do is to ensure that the Lord President has used the right procedure. In essence, that is the kind of appeal on law of process that the legal system itself understands. Provided that that reviewer is seen to be independent and well qualified, the proposal should not cause us any trouble.
Although the bill covers many technical legal issues, it is also important that we remember the communities that we represent, and the need to put together a justice system that is fit for purpose and serves them well.
I want to concentrate my remarks on the new format of the Scottish Court Service, which will no longer be under the direct authority of the Cabinet Secretary for Justice. That raises important issues about accountability and the representation of local communities. The proposals could weaken accountability and undermine democracy.
I will give a practical example of that. On Tuesday, the Scottish Court Service published proposals to close Rutherglen district court and transfer the business of that court to Glasgow. To me, that is an illogical decision. At a time when electoral and health board boundaries are moving away from Glasgow, it does not make sense to move the court towards Glasgow. The decision will cost local people more money, for travel. Further, the local court is recognised as being an effective court that serves a local purpose. I give notice that local people will oppose the decision and will make their views known loud and clear during the consultation process. I have raised the matter with the cabinet secretary, and I raise it again today not only to register my opposition to the proposal, but because it illustrates something that is at the heart of the discussion about the reformatting of the Scottish Court Service. At present, communities can make their views known through directly elected politicians. The new arrangements that are proposed in the bill must be examined closely, in case they do not give communities a proper and strong voice on those legal matters.
I endorse what others have said about getting wider representation throughout the judiciary. I accept the committee convener's comment that people must be properly qualified, but we must do more to ensure that more women and non-white members of the community are represented.
As others have said, mandatory training is important. As the bill progresses to stage 2, I hope that the proposals on that are strengthened. It is important that we have consistency and that people are properly trained to carry out the duties that are required of them.
I have concerns about the format of the Scottish Court Service. I strongly support wider representation and also mandatory training. I support the general principles of the bill and look forward to some of the ideas being developed at stage 2.
I welcome the fact that the cabinet secretary has been prepared to address some of the areas of concern that the committee raised but, as we have heard, there remain a number of issues on which we would like him to go a bit further. As I said at the end of my previous speech—members will be delighted that I will be able to finish the point now—there were certainly reservations, which Bill Butler, Paul Martin and others have outlined, about the Scottish Court Service being set up as a separate corporate body, rather than as an executive agency of the Scottish Government that is under ministerial control and is, therefore, accountable to us. At present, we are able to hold ministers to account for the SCS.
As others have mentioned, some of the issues raised were to do with the Lord President's workload but, as the cabinet secretary said, the Lord President and others have argued for the proposed change and think that it is reasonable for control over administrative operations to sit alongside the many other additional responsibilities that the Lord President will inherit as a result of the bill.
An issue that the committee spent considerable time examining in detail was that of accountability. Under the bill, the Lord President will be the chair and head of the Court Service and some members felt that that might be problematic, given that he could not be compelled to appear before the Parliament to account for service performance. However, I agree with the view that, as the accountable officer, the chief executive could respond to any issues that concerned the SCS. Furthermore, the Lord President has indicated that, in exceptional circumstances, he would not rule out accepting an invitation to appear before the Parliament. Perhaps surprisingly, his first visit to the Justice Committee has not put him off coming back.
Bill Aitken and others commented on the concept of a unified judiciary. I particularly liked his description of a situation in which
"the buck will stop with the Lord President".
That is a pretty good summing-up of what the proposal is all about. Members feel that it will be of benefit for the judiciary to have a single head who can speak on its behalf to the Parliament and the Government, but they also feel that it would be detrimental to Scotland's judicial system if the responsibilities that are placed on the Lord President and others as a result were to significantly reduce the amount of time that they spend carrying out their judicial roles. I note the Lord President's reassurance that he is determined to ensure that he is not affected in that way.
Several members commented on the complaints procedure, which everyone agrees is a good part of the bill. However, there are some issues around the judicial complaints reviewer. As things stand, Victim Support Scotland, among other organisations, suggested that many people would be unsure how to go about complaining if they were concerned about the actions of a judge or a sheriff, so the proposal is positive. However, cost is an issue and there were concerns that a formalised complaints and review procedure would inevitably generate a large volume of complaints—it is estimated that the number of complaints would grow from around 180 to around 400 a year.
If, as is expected, the reviewer were to review about 50 of those complaints, it is thought—although not by Cathie Craigie—that that would cost £24,000 year. Cathie Craigie referred to that as a "fantasy figure", but it is perhaps not the fantasy figure that I would have in my head. If costs are kept to a minimum, the establishment of a reviewer will be beneficial in helping to increase the openness, transparency and accessibility of the system, and will give the public the comfort of knowing that complaints will be examined properly, rather than it simply being a case of judges judging judges. The proposal will certainly be much cheaper than complainants going to judicial review, which is not a helpful suggestion.
The committee and Paul Martin, in particular, strongly support mandatory training for judges. We ask the cabinet secretary to reconsider his position on the matter. The Liberal Democrats support the view of Victim Support Scotland and the Justice Committee that witnesses, especially vulnerable witnesses, should be protected by a guarantee of adequate training for judges, so I am disappointed that the cabinet secretary has not accepted the committee's recommendation. In his recent statement on implementation of the Vulnerable Witnesses (Scotland) Act 2004, he claimed that the Government will
"stand by the previous Administration's commitment to make the system more accessible to witnesses who might otherwise be denied a voice."—[Official Report, 30 April 2008; c 8037.]
I hope that he will reconsider mandatory training for judges, as a way of honouring that commitment.
If the Lord President has ultimate responsibility for making and maintaining arrangements for training, I hope that he will take on board our comments. The Judicial Studies Committee is considering training issues, which is a positive development, but if additional training is not to be made mandatory through statute it is important that the Lord President should consider different perspectives, including victims' views.
Issues to do with the diversity of judicial appointees were raised during the committee's consideration. It is important that we have a diverse judiciary in Scotland, while ensuring that candidates are selected on merit. I welcome the working group that is considering the matter. We need an holistic approach, to ensure that issues such as access to education and training are taken into account. A more diverse judiciary, which reflects modern Scotland, will help to build confidence in our justice system. That should be—and is—what the bill is all about.
I hope that progress can be made on many of the issues that were raised in the debate and particularly on judicial training, which should be mandatory.
My colleague John Lamont said that the Scottish Conservatives fully agree with the principles of the bill and will support it at decision time. In the time that is available, I will consider various parts of the bill and comment on areas in which it could be strengthened and improved at stages 2 and 3.
Most members mentioned part 1. There is no debate about judicial independence, as all members support that important constitutional principle. The debate hinged on whether the inclusion of a guarantee of judicial independence will enhance that fundamental principle. The Justice Committee considered the matter carefully and came to the right decision, which was that distilling common law and convention into statute will send a powerful message and have the added benefit of bringing our approach into line with that of other countries and making it consistent with the approach in the rest of the United Kingdom.
I add two caveats, one of which was mentioned by Nigel Don. First, the bill confers the duty to uphold judicial independence on a select number of people: the First Minister, the Lord Advocate, the Scottish ministers and one or two others. It is worth reflecting on whether the list should be extended, perhaps to include members of the Scottish Parliament. As we consider one of the first bills to be introduced in the third session of the Parliament, it might be worth making crystal clear the relationships in and functions of government.
Secondly, the examples of what might constitute an attempt to influence judges have been drawn quite narrowly. I think that Lord McCluskey suggested that the insertion of the words "in particular" into section 1 might make it clear that we do not want to exclude a number of ways in which people might seek to influence judges. The cabinet secretary has hinted that he will consider the issue and ensure that the provision is tight.
On part 2, we support the principle of unification of the judiciary. As members said, a heavy burden of functions will fall on the shoulders of the Lord President, although a degree of delegation will be allowed for most of them. The Lord President said that he would be able to deal with his workload. His view, which was based on consideration of the Irish system, was that the workload would probably be about two days per month. I have not investigated the details of the Irish system but, on the face of it, that seems not to be a large workload. I welcome part 2 of the Osler review, which will consider the burden that will be placed not just on the Lord President but on other members of the judiciary as a result of the transfer of the Scottish Court Service. In evidence, a witness—I cannot remember where I read this—suggested that some 200 days per year of judicial time might be lost to administrative and management functions. If that were to happen, we would have to question seriously the transfer of the SCS. I am sure that the review will come up with the best, most accurate picture.
Much has been said about the Judicial Appointments Board, and the issue has not been contentious. However, I want to add a couple of comments. Schedule 1 says that a member of the Judicial Appointments Board can be removed on conviction of "any offence". The Law Society made a good submission to the Justice Committee, explaining that the provision is a touch draconian and that the wording could be tightened up. Perhaps the wording could be "any serious offence". I am sure that more appropriate wording could be found, but "any offence" seems to me, too, to be a little draconian.
Section 11 describes what happens if the cabinet secretary does not agree with a decision of the Judicial Appointments Board. The cabinet secretary can say no to a decision and send it back to the board for reconsideration. However, the bill stops there; it does not describe any procedure for what should happen if a stand-off occurs between the Judicial Appointments Board and the cabinet secretary. South of the border, the Judicial Appointments Commission can ultimately force its decisions through but, in Scotland, we have left the stand-off in the air, perhaps in the hope that common sense will prevail. However, common sense does not always prevail in a stand-off. We are legislating anyway, so it might be better if the bill catered for such situations.
The biggest disagreements relate to the judicial complaints reviewer. Under sections 26 and 27, the Lord President will present a process for looking into the conduct of judges. Under section 27, he has a range of disposals available for dealing with judges who are found to have behaved inappropriately. In my view, the judicial complaints reviewer would therefore be a toothless tiger with no real powers. As I suggested to Mr Martin when I intervened on him, if the judicial complaints reviewer finds that the process was not followed, the only power that he has is to go back to the Lord President, who gave him the case in the first place, and say that he does not think that the process was followed. We are therefore not persuaded that the reviewer would add anything to the process.
I commend the work of the members of the Justice Committee in producing their report on the Judiciary and Courts (Scotland) Bill.
The main themes of the bill are to put the Judicial Appointments Board on a statutory footing; to ensure transparency in the process of appointing judges and sheriffs; and to ensure that a common-law principle becomes enshrined in a statutory duty. It will be important to increase diversity in the appointment of judges. As other members have said, we have four female judges out of a total of 34, and we have no judges from black or minority ethnic communities. We have a long way to go. However, I emphasise that it will not be only for the Judicial Appointments Board to ensure that we achieve diversity. The whole system will have to operate in such a way as to achieve diversity.
A key theme in the bill is the independence of the judiciary. As others have said, the separation of powers is a cornerstone of a democratic country. That is our common law, which we will enshrine in the bill. We uphold judicial independence, as we should. The bill defines judicial independence by means of the provision that ministers
"must not seek to influence particular judicial decisions through any special access".
"Special access" has been defined as access that ministers might have that the general public might not. I am not convinced that that represents a helpful definition of independence. We should consider it further. We should not tie ourselves in knots trying to define what we mean by independence, but we should do our best to enshrine the common-law position in the bill. In other words, we should enshrine the status quo but go no further.
Members of the Parliament must be free to comment on the justice system and to question ministers on general issues that have an impact on policy or on our constituents, without those comments or questions being regarded as interference in judicial independence. Our sheriffs and judges do excellent work and they have ensured that Scotland has a legal system of which we are proud and which is envied in the rest of the world. Our relationship with the judiciary is important; it is important that the independence of the judiciary should not preclude dialogue with judges.
The new duties of the Lord President in relation to the training and welfare of sheriffs will come at a cost. Discussions need to take place so that we are clear about those additional costs.
I will comment on some issues that need closer consideration at stage 2. Considerable powers will be transferred from the Scottish ministers to judges. I begin with the power to change the quorum in the Court of Session for a division of the inner house. At present, under section 2(4) of the Court of Session Act 1988, the quorum "shall be three judges". I am not clear why that is a matter for the judiciary. More clarity is required on that and on whether the intention is to change the quorum of three judges, which I think we have had for several hundred years, although I could be corrected on that. I want to know why that needs to change and why we are devolving the responsibility for that without at least being clear about the circumstances in which the power would be used.
Responsibility for the organisation of the courts, including the boundaries of the sheriff and district courts, will transfer from ministers to judges. James Kelly made the point that, under the new summary justice legislation, through which we are unifying the court system, an early decision has been taken to close two local courts. That was never the intention behind unifying the system—it was never intended that we should use that legislation to rationalise the system. As an elected member, I want to have a say on where local courts should be and the boundaries of the sheriff and district courts. I would have concerns if we passed responsibility over those matters to judges.
Judges will have a say in the drafting of any orders on the number of judges. They should have that say and they have done until now, so I have no difficulty with that. However, I have a difficulty with the fact that, a year after passing the Criminal Proceedings etc (Reform) (Scotland) Act 2007, we are to change the provisions again so that the establishment of justice of the peace courts will be a matter for judges. I do not know why that was not thought through a year ago. That is not consistent.
As other members have done, I want to address the issue of where responsibility for the Scottish Court Service should lie. In relation to the establishment of JP courts, paragraph 120 of the policy memorandum states that the transfer of powers to judges is the right course of action, because otherwise the provision would be at odds with the
"overall policy intention of transferring to the Lord President responsibilities for the judiciary".
I thought that the bill's overall aim was to place judicial appointments on a statutory footing and to enshrine the independence of the judiciary. Throughout the policy memorandum, I read that measures are consistent with the intention to transfer responsibilities. I am not clear why. Are we saying that, without transferring responsibilities, we cannot enshrine the independence of judges? We have operated the Scottish Court Service under elected Administrations since at least 1995. I am not sure whether that matter relates to independence. We need clarity on that.
The policy memorandum goes on to state that the Scottish Court Service will be independent of the Scottish Government. That means that the running of the courts, their boundaries and investment plans for the courts will not be matters on which someone is accountable to the Parliament. We need clarity on the balance between independence and accountability. The cabinet secretary said that the Lord President will have a leading role but, from reading the policy memorandum, I see that it will be much more than a leading role—it says that the Lord President will be independent. I totally and wholly agree that the Lord President and judges should not be compellable witnesses to the Scottish Parliament, but civil servants are compellable witnesses. We need to know whether the chief executive and the staff of the Scottish Court Service will be compellable witnesses. I do not believe that their status should change in relation to how we hold them to account. We need clarity on that.
Ministers do not intend to take a ministerial power of direction, but rather there will be a provision that can be used in the event of serious failure. We need to think that through, too, because ministers might want to direct in some circumstances. Would that, too, be seen to be interfering with the independence of the judiciary?
We need to stop and think carefully about what we are doing before we pass over a Government department that is accountable to ministers and subsequently to the Parliament. We must think how we can hold the body to account if it is under the jurisdiction of judges. As I said to the cabinet secretary in the briefing that I received yesterday—for which I am grateful—the test for me is whether I will be able to ask questions under the parliamentary procedure, under which I am entitled to an answer from the Scottish ministers, and hold them to account for the running of the courts. Will I receive an answer, and from whom will I receive it? I want to know that I can hold the Administration to account.
It is not good enough that the chief executive has volunteered to come to committee. That commitment is not strong enough for me. I want us to consider those issues before we go much further. I support the strong view of the Justice Committee on the matter, and I hope that we can find a way forward.
I welcome members' contributions and the tenor of the debate, which is perhaps understandable, given that the genesis of the bill was under the previous Executive. It was treated as non-partisan by the Scottish National Party and others, and that approach has continued through the change in Administration following the election in 2007.
Individual members have raised legitimate points on a variety of matters, including judicial independence, the Scottish Court Service, the Scottish Land Court, the Judicial Appointments Board and mandatory training. I will attempt to deal with as many as possible.
I am grateful that, like me, Bill Aitken and Pauline McNeill put on record the fact that we are well served by our judiciary and have been throughout the centuries. I have always made it clear that, as a nationalist party, we are grateful that the judiciary was one basis on which Scottish national identity was maintained over 300 years. However, irrespective of where one stands on the constitution, it is accepted that the judiciary has served our communities well. It will continue to serve us well, and the bill seeks to build on that excellent service.
We are seeking today to enshrine in law the common-law principles that were mentioned by Pauline McNeill. The independence of the judiciary is fundamental to any democracy. I have been noted for condemning American foreign policy lately, but the US constitution serves as a model for many. Certain aspects—its treatment of gender, slavery and race—show that it was written in the ethos of its time, but the idea of the separation of powers, which was enunciated initially by the likes of Thomas Paine and contributed to by many of the founding fathers of Scottish descent, has served both the United States of America and other democracies. There has to be an executive arm, a legislative arm and an independent judiciary. That is what the bill will enshrine.
There have been good wishes and support for the general ethos and principles of the bill, but I acknowledge that there are legitimate concerns. I can put one concern to bed at the outset. Pauline McNeill mentioned the accountability and compellability of the chief executive. Section 23 of the Scotland Act 1998 enables the Parliament to require any person to attend its proceedings for the purpose of giving evidence. We can be clear that accountable officers would attend a committee. I am sure that they would never consider not attending but, if there were difficulties, they could be required to attend.
One concern has been on the resourcing of the Scottish Court Service and whether it should remain under the auspices of ministers or, as is proposed in the bill, be dealt with under the aegis of the Lord President as part of an independent judiciary. Both Pauline McNeill and James Kelly commented on the issues. The Scottish Court Service is conducting a consultation on district courts, and no decision has yet been made on courts either in Rutherglen or elsewhere.
Furthermore, even with the changes that are proposed in the bill, any court closure would require parliamentary consent to an order promoted by the Lord President. Parliamentarians would have the opportunity to oppose such an order. The decision would be made by a body standing in a different arm of the tripartite relationship in our democracy, but the Parliament could deal with the matter.
There appear to be two particular matters to address. First, there is opposition in principle to the transfer of the Scottish Court Service to the independent judiciary—that appears to be Mr Martin's position. Secondly, there is the question of resourcing, which has been raised by the committee convener Mr Aitken, Ms Smith and Mr Lamont.
We are carrying out a review of resourcing. There is a draft of Mr Osler's remit, which is to reach an independent view on the extent to which new functions that the bill proposes for the judiciary will require additional time commitments. We are more than happy to share the outline of that with the committee to ensure that justice is seen to be done as well as done.
Does the cabinet secretary agree that it would be particularly useful to the committee's considerations if Douglas Osler would quantify the existing judicial commitment to administrative tasks and compare it with what is likely to happen?
There is a lot of merit and logic in that. My view has always been that it is best to discuss a remit with the person to whom one is ultimately giving it, because they will have their own views, but I am happy to make Bill Aitken's point clear to Mr Osler.
If we can satisfy the objection on resources, it comes down to the point of principle. Our view is that the transfer of the Scottish Court Service is appropriate. If we are to have a tripartite system with an independent judiciary, logic dictates that those who serve and work under it should be under its remit and responsibility.
There are aspects in which the system will have to interact—Ms McNeill made points about that—and it must always be allowed to develop. There will be matters on which parliamentarians—whether on the Justice Committee, individually or through any office that they hold—will wish to interact with it. However, if we can satisfy the legitimate concerns regarding resourcing, it is best that the independent judiciary for which we strive should have control over the court service for which it has responsibility. Logic dictates that it should be so. If we do not provide for that, there will be a fundamental illogicality and we will, to some extent, undermine the ethos of what we are trying to deliver, which is an independent judiciary to serve us well.
There is equally the question of training. Members have raised matters that cause a great deal of concern. First, I must reiterate and point out that all members have accepted that our judiciary has served us well without a requirement for mandatory training. However, the system and other matters have moved on. There has been a significant change in attitudes. There are younger members of the judiciary and there has been a change in terms of women and ethnic minorities. We must reflect those facts. As with the principle of where the Scottish Court Service should stand, we must realise that it would be illogical for us to say that we are creating an independent judiciary because we recognise that it is fundamentally important in a democracy but that we, as one arm of the trident of that democracy, reserve the right to tell it what it can do.
Secondly, when the Lord President gave evidence at the Justice Committee, he accepted the need for training. He went as far as possible in saying that, although it would not be mandatory, it would be expected. He will have significant powers in that regard. Already, under the Judicial Studies Committee, sheriffs are undertaking a variety of types of training, not simply to ensure that they are up to date with and apprised of all the new laws that Mr Butler and others apparently wish we were spewing out as they were spewed out in the previous parliamentary session, when they all complained that so many bills were coming through that they could not keep pace. The training not only ensures that sheriffs understand the law and are able to implement it to the benefit of our communities but takes in other matters, such as understanding child psychology or understanding evidence and how witnesses behave. All those matters are accepted and recognised.
We welcome the debate. We have taken on board points that have been made and will reflect on others. If members have raised issues that I have not addressed today, I will be happy to touch on them. However, I reiterate that it is important to declare the judiciary's independence. To refuse to transfer the Scottish Court Service to its control would undermine that independence and would be illogical. Equally, to impose mandatory training on it would undermine the logic of creating an independent judiciary, because it has served us well and we are enshrining its independence to ensure that it will continue to serve our communities well for centuries to come.