Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-4542, in the name of Cathy Jamieson, that the general principles of the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill be agreed to.
I thank members for allowing the bill to be considered under the procedures that enable legislation to be passed swiftly. I acknowledge the co-operation of the various political parties in the chamber.
The bill is short, but it concerns an important measure. The aim of the bill is to ensure that there is no disruption to the smooth running of the courts or other aspects of public administration when either or both of the two most senior judges are unable to carry out their duties owing to ill health or when one of the posts is vacant. The judges in question are the Lord President of the Court of Session and the Lord Justice Clerk.
I do not want to dwell unnecessarily on the background, but it might be helpful to remind ourselves of the circumstances that the First Minister outlined in his statement on 1 June.
As members will be aware, the Lord President is currently unable to carry out his duties, owing to ill health. There is no firm date for his return to duty. In the meantime, the Lord Justice Clerk is presiding over the courts. The uncertainty about when the Lord President will return is causing some difficulty because, as the law stands, the Lord President alone may take certain actions and make certain decisions, and the functions of the Lord President extend quite widely.
In addition to matters concerned with the operation of the courts, the Lord President has a range of important responsibilities in other areas of public administration. For example, there is a statutory requirement to consult the Lord President before a recommendation is made by the First Minister for the appointment of a sheriff, and it is the Lord President who appoints the members of the tribunal that investigates questions about the fitness of part-time sheriffs. Acting with the Lord Justice Clerk, the Lord President also has important functions relating to the investigation of misconduct by full-time sheriffs.
It is also a traditional role of the Lord President to recommend persons for appointment as Queen's counsel. The Lord President alone has responsibility for appointing people to a range of tribunals, and he or she is also the rule-making authority for a number of tribunals and bodies. As there is no mechanism for such functions to be carried out other than by the Lord President, his or her absence for any length of time has the potential to be disruptive. I am sure that members agree that such disruption is not acceptable to those who use our tribunal systems, for example, or who otherwise rely on the Lord President fulfilling the functions that are placed on his judicial office. The measures in the bill offer a straightforward, commonsense way of filling the gap in our law.
I assure members that, in preparing the bill, we have fully respected the independence of the judiciary. We are committed to that fundamental constitutional principle, and the measures that we propose have the support of the Lord Justice Clerk and other senior judges. Equally, and for completeness, I should say that our proposals do not affect the First Minister's power under the Scotland Act 1998 to set up an independent, judicially led tribunal to investigate any question of fitness for office; nor do they affect the important role that the Parliament has when the report of such a tribunal is laid before it.
As I said, the proposals in the bill are straightforward. Two basic situations are covered: vacancy, and incapacity owing to ill health. Although the pressing need is to deal with the present and most unfortunate incapacity of the current Lord President, Lord Hamilton, the bill includes provisions to deal both with the incapacity of the Lord President and the Lord Justice Clerk and with those offices being vacant. That will ensure that the bill's effectiveness will not be undermined by unforeseen circumstances.
I will outline some of the basic principles of the bill; there will be an opportunity to consider points of detail later today. The basis of the provisions is that, when the Lord President is incapacitated or the office is vacant, the Lord Justice Clerk, who is the second most senior judge, will carry out the Lord President's functions. It is important to note that the Lord Justice Clerk will not become the Lord President, but he or she will have the legal authority to carry out functions that fall to the Lord President under the law. While the Lord Justice Clerk is doing that, the functions of the office of the Lord Justice Clerk will be carried out by the senior inner house judge.
When the offices of Lord President and Lord Justice Clerk are both vacant, or when both are incapacitated due to illness—if such an unfortunate situation arose—the structure of our proposals will ensure that their functions can be carried out by the senior and second most senior inner house judges respectively.
I turn to the circumstances that would trigger the provisions. We do not consider it necessary to make provision for any special procedure in the case of a vacancy. A vacancy in one of the judicial offices arises when something definite occurs. The office holder might give notice of an intention to resign from a given date. Indeed, that is what happened when Lord Cullen retired—he gave notice that he would retire from office on 25 November 2005. Had the provisions in the bill been in force at that time, they would have been triggered when the vacancy arose. On 26 November, the Lord Justice Clerk would have had the power to carry on the functions of the Lord President until the new Lord President took up office.
A person's inability to carry out the duties of office owing to ill health is, of course, a different matter. It is here that we have been most careful to avoid anything that might be considered interference with the independence of the judiciary. The bill therefore provides that incapacity will be determined by the most senior judges—that is, the judges of the inner house. At least five of them must be satisfied that there is incapacity and must sign a declaration to that effect. The Lord Justice Clerk must be among those who sign the declaration. When the judges' declaration is received by the First Minister, the powers to act under the bill will take effect.
The end of the process will be triggered in a similar way. Five judges need to be satisfied that the incapacity has come to an end. They need not be the same five judges who signed the initial declaration, although, again, their number must include the Lord Justice Clerk. That approach means that the serious step of certification is carried out by our most senior judges, in whom we have the utmost confidence. Members will wish to know that the proposed approach to certification has the senior judges' support.
I should also say that although we have not consulted on the provisions in the bill, we consulted on the underlying principle in our wider consultation on reforms to the judicial system. Respondents to that consultation broadly supported a provision that would allow the Lord Justice Clerk to undertake the Lord President's functions during temporary incapacity and at any time when the office was vacant. I am therefore confident that I present to Parliament proposals that those who have dealings with our judicial system will welcome.
We would do our citizens a significant disservice if, during times of illness or vacancy, there were no way to perform the functions that have—rightly—been entrusted to our most senior judges. We need to fill the gap in the law without delay. I therefore hope that members will agree that the bill offers a simple and effective remedy that fully respects the independence of those whom it concerns. I commend the bill to Parliament.
I move,
That the Parliament agrees to the general principles of the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill.
I thank the minister for her eloquent explanation of the bill. The Scottish National Party fully supports the action that the Executive has taken. Some things in life and in legislation cannot be foreseen; they simply happen. Some situations could be surmised, but if that were always done, we would legislate daily for issues that might never arise and the Parliament would be unable to get on with its day-to-day business.
The situation is rather unfortunate. Perhaps we have simply been fortunate in the past. Given the history of the office of Lord President and the actions of some of their lordships in years gone by, perhaps it is simply by the grace of God that such a situation has not arisen before. However, it has now arisen, which is unfortunate for Lord Hamilton and his family and for the administration of justice, and we require to address it.
Legislation is needed expeditiously, so we fully support the Executive's action to take the appropriate steps. The consultation that would normally happen on a bill could not take place, but full consultation has taken place and no suggestion is made that any political party or, more appropriately, anybody who is on or involved in the judicial bench feels aggrieved or has had no opportunity to participate.
As I said, speed is of the essence. The circumstances have arisen and it is important to keep the show on the road. To an extent, we have had a similar experience in our day-to-day lives in the Parliament with the beam incident and the problems that arose from that. It is essential that the administration of justice continues, just as the administration of the Parliament and the functioning of the legislature continued because expeditious action was taken. In the circumstances, we are more than happy fully to support the Executive's action and the bill.
The offices of the Lord President and the Lord Justice Clerk are the two most senior in Scotland. The Lord President is the head of the Court of Session—Scotland's superior civil court—and the Lord Justice Clerk is the next most senior judge. Those two judges plus 32 senior colleagues make up the Court of Session. Judges in the Court of Session are also judges in the High Court of Justiciary—the superior criminal court—whose head is the Lord Justice General, an office that is held by the Lord President. The Lord Justice Clerk is the next most senior judge in the High Court.
It is clear that those two offices are hugely important to our justice system and to the efficient running of our most senior criminal and civil courts. Crucially, the judicial business that is undertaken in those courts depends on the ability of the powers and duties that are attached to those offices to continue to be exercised in unforeseen circumstances.
The bill is necessary because of how current legislation stands and the current Lord President's unexpected incapacity. Under current legislation, provision is made for the Lord President's depute—the Lord Justice Clerk—to fill any vacancy temporarily and to carry out some of the Lord President's duties, but no provision is made for the Lord Justice Clerk to carry out the Lord President's statutory duties. It is therefore not only eminently sensible but essential for the Parliament to address the situation through the emergency legislation.
In effect, the bill does four things. First, it provides a catch-all provision that will ensure that, if the Lord President becomes incapacitated or if a vacancy arises, all the various statutory powers and duties that are attached to the office of Lord President are transferred to the Lord Justice Clerk temporarily, together with existing powers that are automatically conferred on him, until the vacancy is filled by a permanent appointment or the Lord President is deemed by a majority of his fellow judges in the inner house of the Court of Session no longer to be incapacitated.
A further provision puts in place a mechanism to empower senior judges to take action when the need arises by issuing a declaration as a result of at least five judges of the inner house of the Court of Session, including the Lord Justice Clerk, deciding that the office of the Lord President is vacant, or that the office holder is incapacitated or is no longer incapacitated. That declaration is to be intimated to the First Minister, who in turn passes it to the Scottish Parliament's Presiding Officer. The bill also makes provision to deal with the domino effect created by the office either of the Lord President or of the Lord Justice Clerk becoming vacant, or the respective office holders being incapacitated.
Crucially, the bill maintains the independence of the judiciary, which is a vital cornerstone of the justice system, by empowering judges in the circumstances outlined to take action free from ministerial interference. The Scottish Conservative party therefore has no hesitation in supporting the general principles of the bill.
The Lord President's extended illness is a source of regret. As Kenny MacAskill said, we are in the fortuitous position that, since the creation of the office of Lord President, which, as is stated in the consultation paper "Strengthening Judicial Independence in a Modern Scotland", dates from
"the institution of the College of Justice in 1532",
we have not needed legislation on the post either in the old Scots Parliament or since, but we do now.
The consultation document rightly states that the role of the Lord President
"is largely undefined in statute."
It also states that
"We do not consider this an entirely appropriate arrangement for a devolved Scotland, or one that gives the judiciary a fully effective structure within which to modernise and develop itself in the interests of those it serves."
The document states that there is an intention to confer
"on the Lord President in statute certain powers and responsibilities."
In that context, if there is extended incapacity because of ill health, it is right that the Parliament responds to requests from the judiciary when there is clearly a need for action.
The First Minister made a good statement that outlined some of the difficulties that we face in relation to the smooth operation of our justice system. The Minister for Justice outlined those again today. The Lord President carries out important functions, so it is important that we have a response to either an extended inability to carry them out due to ill health or a vacant position.
The bill is measured and is a good response. I welcome the fact that it limits the definitions and retains the independence of the judiciary. One could question why such legislation has not been needed before. The Executive had, of course, asked that question when consulting on the proposals that were set out in the consultation document. It seems slightly ironic that we probably cannot proceed with the consultation process on reforming the position of the Lord President because the Lord President is unable to respond to the consultation.
The bill may benefit from a sunset clause or a statement of intent from the Executive on its intentions in bringing forward legislative proposals in the wider context of the role and position of the Lord President. It would be helpful for the Parliament to get clarity from the minister with regard to whether the provisions in the bill will be extant when that further legislation is brought forward, or whether they will fall and be subsumed into wider legislation. That said, the Liberal Democrats will support the general principles of the bill today.
I suppose that I should begin with a declaration of interest. I am—some people will be surprised to learn this—a practising member of the Faculty of Advocates. That makes me technically eligible for the office of Lord President—I have to say that we do not get much more technical than that.
I have one problem in speaking in the debate: there is little to say. This unanimity is fabulous. I was, however, attracted to a comment that was made in both the policy memorandum and the minister's speech that the bill is in no way an attack on judicial independence. I liked that, particularly given the present climate, as anything that emphasises judicial independence is to be welcomed. If I am honest, I suppose that that is because most people in the legal profession are a wee bitty worried about the whole subject. I do not think for one minute that the Executive operates in bad faith. I know that Cathy Jamieson, Hugh Henry and, indeed, the Lord Advocate, value the principle of judicial independence. I am not hinting otherwise.
I do not agree with all the comments that were made recently by, for example—to name no names—retired judges. Their attack on the judicial appointments system is not well founded. We need to bear in mind the fact that, in the past, Colin Boyd could have appointed anyone, including himself, if the mood had taken him—[Interruption.] He says that that would not be a bad thing.
Having a more open system is hardly a ground for criticism. The problem is that, although no one would seek to undermine judicial independence, that can happen in society in an almost incremental way, particularly if there is the sort of press pressure that operates here. Last week—or this week—one newspaper ran a front page that had a picture of eight judges on it. Basically, the paper was calling for the judges to be sacked because each of them had passed a sentence with which the newspaper disagreed. At least one of the judges—again, I name no names, but he will know who I am referring to—could hardly be described as soft by any standards whatsoever. He would be insulted by the very suggestion.
On reading the article, I found not the slightest indication that the writer had in front of him a full, detailed and balanced view of why the judges did what they did. However, the effect of the piece was to undermine public confidence in the judiciary. That is why I keep saying that I am glad that Cathy Jamieson emphasised that we will never do that.
I welcome the fact that Gordon Jackson is contributing to the debate. Given his experience, I ask him to comment on one of the bill's provisions. The Lord Justice Clerk has to sign both the declaration of incapacity—which is fine—and the lifting of the declaration. The provision gives the Lord Justice Clerk a veto: he can say, "The Lord President remains incapacitated until such time as I say otherwise." Is that a proper provision, given that he could be the person who succeeds to the office on the Lord President demitting it?
I think that we will leave that one to the minister. As always, Stewart Stevenson has thought of something that never occurred to me. I suppose that he is saying that, once the Lord Justice Clerk gets in, we might never get him back out again. I am not quite sure about that; I am sure that it would not happen.
In talking about judicial independence, I am not suggesting that judges should be put on a pedestal and given undue reverence. By way of balance, I should say that I have spent most of my adult life trying to knock judges off their pedestal.
Someone one said—it was a judge who said it—that judges are like chimpanzees: the higher they climb, the more you see of their less attractive features. Of course, some judges are better than others. However, it is vitally important that, even though judges get it wrong from time to time, we maintain a respect for the office and not just the people. Unless we do that, the whole of society will be the poorer.
Will the member take an intervention?
I am sorry, but I am almost finished.
It is on that point.
All right.
I acknowledge much of what Gordon Jackson says about the independence of the judiciary. However, for the justice system to work, the overall perception of the public is all important. Where there is a growing perception of dissatisfaction, would he care to comment on whether the problems that are facing judges have been made by this and other Parliaments?
The system is good; it is just that a balance needs to be struck. Of course, we need to have public confidence in the judiciary, but if newspapers undermine that confidence in a way that is blatantly not always honest and fair, it is difficult to strike that balance. [Interruption.]
I worry about the way in which judges are serviced, in a manner of speaking. It is obvious that a modern judiciary needs proper levels of staffing. I know that others, including the dean of the Faculty of Advocates, have said that the judiciary should have the structure of an independent service; it should not be part of the normal civil service structure. I make a declaration on the point: I have a great deal of sympathy for that viewpoint.
The whole structure has three branches: the Executive, the legislature and the judiciary. That separation is important. The Parliament's staff are separate from the Executive civil servants. Every parliamentarian thinks that that is a good thing and would object if the situation changed. We should perhaps apply the same consideration to the judiciary. If the new judicial system needs staff, we should think about how they can be provided in a way that maintains that independence. That is just a wee thought. [Interruption.]
I support Cathy Jamieson's declaration about the independence of the judiciary. I echo what she said, but I suggest that we need to ensure that that independence is properly maintained.
I remind members that mobile phones must be switched off and not just kept on silent. Someone's phone is interfering with the sound system.
I strongly support everything that Gordon Jackson has just said.
I declare an interest as a non-practising QC. Indeed, I became an advocate a few months after Arthur Hamilton, who is now Lord President of the Court of Session. On what is in some ways a sad day, it is right that we should wish Lord Hamilton, who has always been known for his conscientiousness and dedication, a full and speedy recovery.
As the minister said, the bill will fill a gap in the law. It will provide a necessary safeguard to make certain that, in the best public interest, the courts have the highest standards. It is therefore also right that we should wish the Lord Justice Clerk, Lord Gill, and his colleagues every success in the challenges that lie ahead. When I was a law student at the University of Edinburgh, Lord Gill was a teacher of law there. His enormous ability was, and remains, well known.
Those of us who have been or are Scottish lawyers are very proud of Scotland's legal system. As both the minister and Gordon Jackson have confirmed, we are also proud of the independence of the judiciary.
This will not be the first time that we have supported emergency legislation in the public interest when issues have needed to be addressed, and we are glad to do so again today.
I call Maureen Macmillan to be followed by Colin Jackson.
As others have done, I wish the Lord President well and a speedy recovery. The Lord President represents the majesty of the law in Scotland. He is the spokesperson for the judiciary. His role in appointing judges and members of tribunals and in approving the rules of certain bodies guarantees the independence from the Government of those individuals and bodies.
In past times, of course, the Lord President was the Government. One thinks of Lord Stair and Forbes of Culloden. The latter's residence was situated quite close to where I live now. Forbes of Culloden was such a good friend of the Government that he was given the Ferintosh concession, whereby he was allowed to distil whisky on his land without paying duty on it. That ruined the whisky trade for all other distillers in Scotland, but Burns was very fond of Ferintosh whisky and celebrated it in his poetry.
Although the Lord President was in past times a very powerful person in the Government, I doubt that many people on the number 33 bus, or any other bus—apart from those who come up from the new town to Parliament House—have any idea of who the Lord President is or what he does. However, without that office, civic Scotland would be a very different beast.
What surprises me as a layperson is that, given the Lord President's importance and the fact that the office has existed since the 16th century, we do not have structures already in place to deal with the incapacity of the Lord President. In gentler times, things could be managed in an ad hoc way, but that is not possible today.
I welcome the bill. I am sorry that the Lord President's illness has caused it. It would have been better if the bill had been introduced when there was no pressing need for it, but we need to act now.
The bill will provide a seamless chain of command and has been approved by their lordships. It will put into the hands of the inner house judges the responsibility of declaring the Lord President's incapacity and the power to restore him to office. That is as it should be. I support the bill.
It is clearly too early in the morning for me. I now call Colin Fox.
Presiding Officer, you must have confused me with another sprinter.
I apologise to the Minister for Justice for missing her opening remarks in the debate—I was taking my kids to school—but I am grateful to the Scottish Executive, the Minister for Justice and the First Minister for their contact with the party leaders. We have been kept informed of developments and plans at each stage of this unprecedented situation, which has arisen through the unforeseen illness of Lord Hamilton—or, as Lord James calls him, Arthur.
Today's proceedings seem to me remarkable in many ways, perhaps none more so than the fact that Parliament is capable of having debates on stages 1, 2 and 3 of a bill on the same day. That shows what can be done when the Parliament really applies itself with haste, a sense of necessity and across-the-board agreement.
Other members have declared a personal interest, so I confess that, having spent the past three weeks in the Court of Session, I almost felt like applying for the Lord President's job myself. Perhaps a workers' judge on a worker's wage is a slogan that has some attraction. Perhaps the court is a place in which working people actually get justice. However, I will move on to the substance of the bill.
On the incapacity of the Lord President, it is hard to believe that a situation such as this has never arisen since 1532. The need for a bill in Parliament when one person gets ill surely throws into sharp relief the need to modernise the system of judicial appointments and structures that we have. I am sure that the whole procedure looks archaic indeed to outsiders.
I am grateful for the papers that the Executive and the Scottish Parliament information centre have provided on the bill. On examination, it appears to be perfectly logical. I admit that that is not always a good guide when dealing with the law or the workings of the judiciary, but it seems to me that the plan for the Lord Justice Clerk to step up when the Lord President is incapacitated and for the other eight judges of the inner house to take on their responsibilities likewise has clear logic behind it.
Heaven forbid that all 10 judges of the inner house should be struck down. We must keep them out of the same building, off the same bus and away from the same function, to be on the safe side; otherwise, we will be looking at a root-and-branch, modernising overhaul of the system, which I suspect would take longer than a day in the Parliament.
I am assured and reassured that the procedure of informing Parliament through the five inner house judges and the Lord Justice Clerk making a declaration to the First Minister and the Presiding Officer is sufficient to ensure that there is close contact between the judiciary and the Parliament. There are clearly important issues around the judiciary's independence from the Executive, but I believe that the bill continues to safeguard its position. In keeping with the atmosphere of unanimity, the minister will be glad to hear that the Scottish Socialist Party supports the bill.
I support the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill and I, too, extend my best wishes to Lord Hamilton. I thank Lord Gill for the work that he has done in carrying out Lord Hamilton's work in the meantime.
It is always welcome to have consensus break out in the chamber, particularly as consensus is important for a bill of this nature. I do not know whether many members can think back to the only other piece of emergency legislation with which the Parliament has dealt. I know that Hugh Henry knows the answer because I was at a quiz night with him when the question came up. I honestly struggled to remember the name of the bill. I will take an intervention from anyone who can remember it, but not from Hugh Henry.
I believe that we have had a healthy relationship with the judiciary over the years of the Parliament's existence. As Gordon Jackson said, this is a timely opportunity to set the record straight on how the Parliament views the independence of the judiciary. Cathy Jamieson was right to lay out clearly that we are committed to the independence of the judiciary and that we always have been. However, that is not to say that politicians do not have a view on the importance of the Judicial Appointments Board for Scotland. At some time, that subject must be brought to the chamber for parliamentary scrutiny because it is one of the few areas on which there has been no ministerial statement of any kind—I look forward to that.
The Judicial Appointments Board for Scotland is important to the work of the Parliament because it allows us to scrutinise what has been happening in the appointment of judges in the past few hundred years. Most of us want to see more women and more people from other types of background on the bench. The hope is that a procedure will bring that about, but that must be tested at some point in the future.
Margaret Mitchell ably set out the four main areas in the bill, but as this is stage 1, it is legitimate to ask particular questions. I want to be clear about the process for the five judges who will sign the declaration. Who will trigger the process? Will it matter which five judges of the inner house contingent sign the declaration? Are we expecting judges to set out their own procedure for determining what incapacity is? How long can incapacity go on for? Is there a trigger point? If the five judges are also to determine when a judge is no longer incapacitated, what processes do we expect them to undergo to make that determination? In other walks of life, we would expect there to be some medical or expert advice on that, and I cannot think why judges should be any different. I am not saying that that is for us to set out, but I want to be certain that, when we agree to the bill today, we have a clear understanding of what will happen next.
I welcome the debate and support the bill.
The situation is unprecedented. I, too, pass on our best wishes to Lord Hamilton and hope for his speedy recovery. Kenny MacAskill and others mentioned the ancient post of Lord President. It is 474 years old and, like other members, I am somewhat surprised that we have not faced such a situation before. Perhaps that says something for the diet in our modern age, for which we all perhaps suffer more. Sadly, one of my bed-and-breakfast guests collapsed this morning, which is why I was late.
My colleague Jeremy Purvis referred to the consultation, "Strengthening Judicial Independence in a Modern Scotland". It seems somewhat surprising that the Executive has been considering the problem. Perhaps the point that Stewart Stevenson made about whether the Lord Justice Clerk should be the person who signs the Lord President off and on again can be taken up during the consultation.
Gordon Jackson—we can all see why he is a QC—said that the bill is not an attack on judicial independence, and I agree. It is vital that the judiciary be entirely independent from us.
Colin Fox started well by being called Colin Jackson. Perhaps he has been jumping hurdles in the Court of Session. He did not mention the New Club as one of the places we should prevent the inner house judges from all being in at once. Perhaps he could add that to the list.
Pauline McNeill is entirely right. She asked the questions that others might be thinking about, and it is important that we get the answers to them.
I support the bill entirely. This occasion must be almost unique in that everybody in the Parliament is united. Perhaps we will see more such unity in future.
There is little to divide us on the issue, but it is perhaps worth while recording that, technically speaking, the difficulties did not start in the 16th century. My understanding is that the positions of Lord President and Lord Justice General have been held by the one person only since 1830. However, the problem is unprecedented, although my historical research indicates that, in the 1950s, the then Lord President, Lord Cooper, suffered a stroke, which was obviously tragic for him but, as he had the capacity to resign, no difficulties occurred.
We can all have 20:20 vision in hindsight, but it is a pity that the drafters of the Court of Session Act 1988 did not simply add, after the words "Lord President", "whom failing, the Lord Justice Clerk", which would have left us without any problems. I am no longer required to be a student of actuarial science, but it seems to me that any circumstances in which the Lord President and the Lord Justice Clerk were simultaneously out of the frame would be unusual. To some extent, the bill seems to take a belt-and-braces approach. However, accidents happen, as we know.
Many of the Lord President's functions are non-urgent and the present situation has not caused any difficulties so far. However, it is worth recording that, in his capacity as Lord President, Lord Hamilton was responsible for the initiation and preparation of all subordinate legislation by the Court of Session in the form of acts of sederunt. It is not too far fetched to suggest that there might have been a difficulty sooner or later—knowing our luck, probably sooner—if we had not acted.
I flag up the fact that the Constitutional Reform Act 2005, which is United Kingdom legislation, refers to consultations involving the Lord President and the Lord Chief Justice of England. The minister knows about that issue, as I have already mentioned it to her officials. She should ensure that her officials speak to somebody down south to obviate any problems that might arise in that respect.
There is not a lot to be said about the bill. We are greatly encouraged by the minister's commitment to judicial independence, which, as members have said, is one of the cornerstones of Scots law. The day when that is interfered with would be a sad one. The minister can rest assured that if there is any departure from that principle, we will not be slow in highlighting the difficulties that might arise. We will defend the principle robustly, but we will not delay the passage of the bill in any way.
The debate has been consensual, which shows that members realise the importance of having an independent judiciary. We may disagree on aspects of our society or on how we operate our economy, but we accept that the independence of the judiciary transcends party politics. Bill Aitken and Gordon Jackson made significant comments on that. The minister has clearly made certain that that independence will not be altered, as her speech, on which Gordon Jackson commented, and the bill show. We will have on-going debates in the Parliament about more specific matters, but the bill does not impinge on those issues.
I was struck by Gordon Jackson's comment about the requirement for the civil servants who deal with the judiciary to be independent. His comment about the Parliament's situation was apposite. We would be appalled if our parliamentary staff were simply an adjunct to the civil service in Victoria Quay. I recall meeting one of the founding fathers of the Republic of Estonia and asking what advice he could give Scotland. He said that we should get control of our civil service because, if the civil service in the former Soviet republic of Estonia had not been prepared to stand independently, Estonia would now be part of the Russian Federation. An independent civil service is important for any body or country. Gordon Jackson's comments about the civil service for the judiciary are important—it should be given the flexibility to look after what we all acknowledge is a body that must be separate from and above politics.
We commend the Executive for moving swiftly on the issue since the First Minister addressed the matter in a statement to the Parliament. The unforeseen circumstance that we are in is to be regretted, most of all by Lord Hamilton, who was promoted to an office to which he had doubtless aspired for some time but in which he has regrettably been unable to serve in recent times. I hope that he will be able to return to his office, but we must ensure that the administration of justice continues. The Executive is correct to use the opportunity that the bill provides to cover a few other circumstances that may occur. As I said earlier, we cannot legislate for all unforeseen circumstances, but when some arise, it is appropriate to take cognisance of other circumstances that may occur. We give our full support to the Executive on the bill.
I thank members for taking part in what has been a useful and consensual debate. I hope that the fact that we have tried to be open and transparent and have kept party leaders up to date with the process—as Colin Fox and others have mentioned—has helped. We have given members the information that has enabled them to support the general principles of the bill. It is heartening to hear so many good wishes from members—I am sure that they will be passed on to Lord Hamilton. I intend in no way to compromise the independence of Lord Gill and the senior judges who have acted in the meantime by saying that Parliament acknowledges the additional responsibilities that they have taken on.
I will pick up on a couple of points that have been made during the debate. Stewart Stevenson, Mike Pringle and others referred to the possibility of someone having a veto and asked whether it would be correct for the same person to be involved in declaring incapacity and signing things off at the end of the process.
Pauline McNeill mentioned processes and procedures, which we have considered. It would be wrong to set out a process or procedure in the bill. We have tried to ensure that we introduce legislation that, in essence, gives the senior judiciary the responsibility and power to take action. We have to trust that it will be able to do that in a common sense way. I cannot imagine a set of circumstances in which senior judges would take decisions that were not evidence based or would not consider a range of options before coming to a conclusion.
I agree whole-heartedly that the bill should not determine the process. The minister is correct to say that we should trust the judiciary. I just want to clarify whether the judiciary will agree a process. It would concern me if there was no process at all. Will the minister confirm that the judiciary will determine its own process and we will know that it exists?
Yes. Pauline McNeill makes a valid point. Of course there needs to be a process. The point that I was making is that by not setting it out in the bill we are, in essence, asking the judiciary to take charge of the process and ensure that it is appropriate.
On the possibility of a veto, we considered what would happen if the judges took a decision that the Lord President did not agree with. If that situation arose, it would be open to the Lord President to seek a judicial review of the position.
I apologise for bringing this up, but I think that it is better to do so now than later. I want to raise a related point about the drafting of the bill. The bill provides for a situation in which both the Lord President and the Lord Justice Clerk are simultaneously incapacitated. Under section 1(3)(a), the Lord President is not considered to be incapacitated until the declaration of incapacity has been made by five judges, which has to include the Lord Justice Clerk, except when he is incapacitated. In the event of the Lord Justice Clerk being incapacitated, there is a matching requirement, in that his incapacitation can be determined only when the Lord President has signed the declaration. If both are incapacitated, it does not immediately seem possible to have either declaration signed, because each depends on the remaining capacity of the other. Is the minister entirely satisfied that in providing that apparently sensible interlock, she has not created a situation of recursion, the definition of which for us in computers was, "see recursion"?
We are attempting to take a belt-and-braces approach, as Bill Aitken described it. I hope that we will not find ourselves in a situation in which both the Lord President and the Lord Justice Clerk are incapacitated as Stewart Stevenson described, but I will reflect on that between the end of stage 1 and stage 2 to ensure that we have the drafting correct.
I am aware that there has perhaps been concern about whether we have the drafting right in relation to who the most senior judge to follow on from the Lord Justice Clerk would be. In the present circumstances, we do not have two senior judges who were appointed on the same day at the same time, so there would be logical succession. I offer Stewart Stevenson reassurance on that point, because I know that he is interested in it. I will certainly reflect on the drafting.
The minister and others have talked about taking a belt-and-braces approach. I perfectly understand why such an approach should be taken and endorse it. However, the bill is very specific—it says that "at least 5 judges" must reach an agreement. Given that one of the judges is incapacitated, five judges would clearly constitute a majority, but it is clear that the size of the inner house could be increased by order so that five judges might not be a majority. Can that matter be addressed when the wider legislation comes forward in due course?
Jim Wallace has raised a valid and important point. We picked the number five so that a majority would be required. The judiciary having to decide that the Lord President is not in a position to act is a serious matter and it is right and proper that a majority should be required to agree to a decision. However, we will reflect on the wider point about the number of judges in the inner house in any future legislation.
I trust that the Presiding Officer does not require me to speak until general question time. I am relieved to see her shaking her head. I do not want to prolong the debate unnecessarily.
Again, I thank all members for their contributions to the debate, in which all parties have had an opportunity to restate the importance of the independence of the judiciary. I do not want to dwell on the matter, but it is important to reflect that principle in the bill—it has certainly been reflected in what I and other members have said this morning. The independence of the judiciary is fundamental to the process. We want to ensure that we can take effective action to keep the show on the road—I think that that phrase has been used—without interfering with the correct separation of the judiciary's work from that of the Executive and the Parliament.
I expect that there will be amendments to consider later in the day but, in the meantime, I simply thank members for their support and co-operation and trust that we will be able to get through the business in good time this afternoon.
The question is, that motion S2M-4542, in the name of Cathy Jamieson, on the general principles of the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill, be agreed to.
Motion agreed to.
That the Parliament agrees to the general principles of the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill.
Meeting suspended.
On resuming—