Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill
The next item of business is a debate on motion S2M-4543, in the name of Cathy Jamieson, that the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill be passed.
I thank everyone for their co-operation in getting the bill to this stage in such a reasonable and co-operative way. I do not think that we have had the precedent—the helpful precedent, I might say—of the Opposition party supplying not only its amendments but its speaking notes to the Executive well in advance. I am glad that Mr Stevenson has set such a precedent and I hope that he will follow it in the future.
Today has been about dealing with the particular circumstances in which we find ourselves in relation to the unfortunate illness of the Lord President. However, a number of points that were made during this morning's debate have a wider implication in relation to matters connected with the judiciary. We will reflect on those points in due course.
Despite the short notice of the bill and the short time available, the debate has been conducted in a thoughtful and, for the most part, informed way. It is important that we pass the bill today; perhaps there was an assumption in the past that, in the circumstances in which we find ourselves, it would simply be a matter of the Lord Justice Clerk stepping up to act for the Lord President. Clearly, we want to put that beyond doubt to ensure that the business of the courts can continue as it properly should.
I will pick up briefly on a couple of points from this morning's stage 1 debate, because I said that I would return to them. Stewart Stevenson raised the question whether the bill's provisions would work should both the Lord President and the Lord Justice Clerk be incapacitated simultaneously. The points that he made would be technically correct, because if both senior judges became incapacitated at exactly the same time or so close together that there was no opportunity to follow through the procedures that the bill would establish, it would be difficult to transfer authority. However, as I think that members recognised this morning, the bill is intended to deal with the type of situation in which we currently find ourselves, for which we need an urgent remedy. Again, I thank members on all sides for their co-operation.
Of course, I accept the point that the minister makes. However, I hope that the draftspeople will note that, if we draft a bill that seeks to account for the possibility that both senior judges may be incapacitated at the same time, we should at least do so in a way that means the bill is capable of being implemented, albeit that that incapacity situation is not going to happen.
Again, I appreciate the points that Mr Stevenson makes, but I think that an emergency measure is not the appropriate place in which to try to make detailed provision to cover every possible set of circumstances that might arise in the future. Indeed, Stewart Stevenson raised a number of such points in today's debates.
The bill is structured to deal with a foreseeable, but of course unwished for, event, namely the incapacity of the Lord Justice Clerk after he has assumed the power to carry on the functions of the Lord President, if that is what the judges decide should happen. Were that to happen, the senior inner house judge would of course step up and carry on the functions of the Lord President; in turn, the next most senior judge would have powers to carry on any functions falling on the Lord Justice Clerk. I think that those proposals will provide the remedy that those who rely on the continuous functioning of our courts and public administration need. Again, I remind members that the proposals have the agreement of the senior judges. However, I am grateful to Mr Stevenson for raising his points during the debate.
As members know, we are considering responses from a broader consultation on aspects of the judicial system. We will receive the views of the senior judges on that soon, although obviously it may be a little while before we are able to receive the considered views of the Lord President.
I apologise to the minister if I did not pick this up correctly, but I think that Bill Aitken made an interesting point this morning about United Kingdom legislation that conferred consultation responsibilities with regard to the Lord President. Obviously, our legislation cannot affect that. Has thought been given to how that might be dealt with?
Yes, indeed. That issue was raised in this morning's debate and we have certainly taken account of it. Various discussions have taken place on the issue and we will continue to ensure that we put in place the appropriate measures to deal with whatever arises.
As I said earlier, we will want to consider all the points that have been made today before any final decisions are made about the wider reforms that may be required in the judicial system at a later stage. I want to provide brief clarification on Jeremy Purvis's question on whether the bill would be subsumed in future legislation. I hope that I have given assurances today that the bill is intended to deal with the circumstances in which we find ourselves at this point. That does not take away the need for a further look at what needs to be done in the future. I certainly expect that we would want to look at the issue that Jeremy Purvis raised as matters progress.
I thank everyone for their co-operation during today's debate and in the lead-up to the debate. I give particular thanks to all the staff, including the bill team, who were brought together at short notice, the draftspeople and, obviously, the parliamentary authorities and members for getting the bill to this stage. I hope that the bill will be passed today.
I move,
That the Parliament agrees that the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill be passed.
The debate has been consensual, which is appropriate in the circumstances. The minister and her team are to be commended for acting expeditiously, as numerous members mentioned in the stage 1 proceedings. We had hoped that we would not have to do this and it is a matter of regret, not simply for those of us who have had to deal with the emergency bill but, doubtless, for Lord Hamilton, who has been unable to exercise the office that might have been the pinnacle of his career. It can only be hoped that he will, at some stage, be able to serve out some tenure as Lord President.
The civil service teams are to be congratulated. They are sometimes the butt of criticism—not simply from me, but from other members—but they have acted expeditiously to ensure that the administration of Scottish justice continues.
The need not only for an emergency bill, but for a broader discussion on the importance of the judiciary has been recognised. The judiciary is another section of our society that is sometimes the butt of criticism, but all parties have acknowledged the importance not only of judicial impartiality and independence, but of the judiciary as individuals. We require a sound legal system. Scotland's legal system and its law have served us well throughout the centuries and will continue to do so.
I am grateful for the minister's forbearance in some of the earlier discussions. We have had an opportunity to air matters and debate them, although not all bases can be covered in emergency legislation, nor should they be. The bill constitutes recognition of the importance to Scotland not only of the judiciary but of the Parliament; we would have had difficulty in dealing with the situation had we simply been legislating at Westminster without a Scottish Parliament to deal with such matters.
I commend the bill to the Parliament and thank the minister and her team for dealing with the matter expeditiously and appropriately.
I welcome the smooth passage of this essential bill—Stewart Stevenson's contribution apart. I thank the Minister for Justice for her helpful briefing prior to today's proceedings and her willingness to address any possible areas of concern in advance of the parliamentary process. That approach, together with members' unanimous agreement that the bill is a sensible provision to bridge the gap in existing law, has resulted in a totally consensual debate.
In such circumstances, there is an obvious danger that members' speeches will become repetitive. The fact that that was not the case during the stage 1 debate was a tribute to members' ingenuity. Examples of that included Mike Pringle managing to make a tenuous link between the Lord President's illness and the collapse of one of his bed and breakfast customers this morning; Gordon Jackson flagging up his technical eligibility—or, as he was at pains to point out, extremely technical eligibility—to be a contender for the office of Lord President; Lord James's fond recollections of his university days with Arthur, alias the Lord President; and Kenny MacAskill taking the opportunity to reinforce the importance of maintaining judicial independence by way of praising Estonia's civil service. All that made a potentially stale debate colourful and interesting.
I wish Lord Hamilton a speedy recovery. At least, with the passage of the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill, he can rest assured that measures are in place to ensure that the powers that are vested in the office of Lord President continue to be exercised and that the business of the Court of Session and the High Court of Justiciary continues uninterrupted in his absence.
We are thankful that there has never been any need for such an emergency measure. There was not one in the old Scots Parliament and we regret the requirement for one in this Parliament, but we have to respond to circumstances that require us to do something about the statutory basis for transferring the Lord President's functions.
Stewart Stevenson did not pass his speaking notes to other parties. We are relieved that he did not and grateful for his lack of courtesy in that regard. Where there is clarity, he sought to bring confusion, but I commend him for his ability to amend his own amendments in one lunch time. That is indeed a parliamentary feat.
I have done it before.
He claims that he has done it before. He is obviously a past master, of which there has been ample evidence this afternoon.
There seemed to be concerns about a cabal that could hatch a plot to unseat a Lord President. Margaret Mitchell said that it would be a disciplinary matter for the Lord President to be unavailable. That would be a bit harsh, unless he was irresponsibly fraternising with Colombian rebels in Bogotá who thought that kidnapping him and holding the Court of Session to ransom would advance their political aims.
The bill is a limited measure and is appropriately narrow in its scope. However, for Mr Stevenson, it has a significant flaw, which is that, if both senior judges were incapacitated by ill health at the same time and the remaining judges were all twins who were appointed on the same day and born minutes apart, difficulties might arise. I suspect that that is the case and I look forward to Stewart Stevenson's member's bill on the issue. The consultation process will be absolutely fascinating, if not statistically sound.
Wider issues have been raised. Gordon Jackson talked about the need to continue the independence of the judiciary and the requirement that the Parliament should be robust in tackling the incremental undermining that we often see of the strong independent judiciary and prosecution service. I am glad that the minister has said that the Parliament will produce legislative proposals that arise from the consultation document "Strengthening Judicial Independence in a Modern Scotland". That consultation will have a significant impact on Scotland's judicial processes and system. At the heart of that will be, within a unified judiciary, the role of the Lord President.
The bill is an emergency measure, but I hope that it signals the start of greater parliamentary interest in the subject. I hope that, soon after the summer recess and as soon as the Lord President's functions can be carried out to allow the judges to respond to the consultation, we will be able to have a debate in Executive time on the consultation document. That is deeply required. I hope that the emergency bill will be passed today, with or without twins voting in the chamber.
As many members have done, I and my Green group colleagues offer our best wishes to the current Lord President—we all hope that his recovery is a realistic possibility. The debate has been a bit bizarre and has been dominated by mathematics and surrealism. We had Stewart Stevenson giving us an explanation of recursion—or was it C recursion? We had the image of letters being signed by 4.5 judges and we had Bill Aitken trying to explain the statistics to Stewart Stevenson, which was bound to be dangerous. As Jeremy Purvis said, we had some pretty surreal images, such as the image of a future Lord President being kidnapped in Columbia and of twin judges who were appointed on the same day vying for seniority. Perhaps at that point, we would have to appoint the tallest.
For anybody watching from outside the Parliament, the debate must have seemed pretty odd all round. It is odd that emergency legislation is required for something that seems fairly common sense, which is that if somebody is off, somebody else works for them. If no Lord President has been off sick for nearly 500 years, the lifestyle must be one of the healthiest in Scotland. As the Minister for Health and Community Care is present, I suggest that he persuades his colleagues to have the entire population appointed judges of the inner house, so that we can put to rest the sick-man-of-Europe image once and for all. However, as members have said, sometimes such measures are needed, so we will of course support the emergency bill at decision time.
There is not much left to say in this debate, given that we have fast-tracked the three stages of a bill in one day. I thank Stewart Stevenson not for lodging the amendments, but for bringing a bit of humour to the chamber. Why stop at considering twin judges—why cannot we consider triplets? Colin Fox was renamed Colin Jackson and is possibly looking for a new career as a High Court judge. All in all, it has been quite a scary debate.
Although this has not been our most exciting day here, I know that the bill is worth while. Some would argue that we have devolution precisely so that we can respond when action is needed—it was certainly needed in this case.
The debate is timely, because, as Gordon Jackson outlined more eloquently than I will, it provides an opportunity for politicians to respond to the press on the accusations that the Parliament has interfered too much with judicial independence. None of us is anything other than committed to protecting judicial independence, but we have to do our jobs in setting out the framework for the legislation, which is clearly required.
I am pleased with the minister's response to the question that I asked in the stage 1 debate, which reiterated the commitment to judicial independence. We set the framework and all we need to know and be satisfied with is that there is a robust process, which we trust the judiciary to determine.
Jeremy Purvis and others said that it was time that we had a debate on the modernisation of the judiciary. I have raised that matter in the past. Although I am happy to support the principle of the new way in which judicial appointments are made, that issue has never come before the Parliament. If we are to legislate in that way, we must at least be able to exchange views before we decide how we want to modernise the judiciary through legislation. I feel strongly about that and welcome the opportunity to put my view on the record.
I commend all members who have brought something worth while to the debate. I will be happy to support the bill.
I do not think that anyone would have wished for this bill; certainly no one anticipated the unfortunate illness of the current Lord President, to whom I pass on our good wishes. I do not think that, at the outset of the debate, anyone would have expected it to be quite as wide ranging, as Margaret Mitchell, Jeremy Purvis and others have said.
The amount of discussion that there has been about twins has perhaps had Wendy Alexander looking in from afar and planning a career path for her children. I understand that, given the Minister for Health and Community Care's family, he too might be changing his view, particularly in the light of the healthy lifestyle that judges have, according to Patrick Harvie. There might be opportunities there—who knows?
On a serious note, I am glad that we have been able to get cross-party support for the bill. It has been useful to work in co-operation with all the parties to ensure that the bill could proceed.
I was interested to hear Kenny MacAskill acknowledge my forbearance. That was interesting, given that it was one of his colleagues who submitted the large number of amendments with which I had to be patient and tolerant. I might not always be quite so patient and tolerant in the future. I would not want Mr Stevenson to see this as a precedent; I am sure that there will be times when we disagree completely.
The point that Pauline McNeill made is worthy of further consideration. As we look forward to what might need to be done in slower time and in the longer term around modernisation of the judiciary, it is important that we acknowledge that there are fundamental principles that ought, quite rightly and properly, to be debated here in this Parliament. I am not in a position to guarantee to Pauline McNeill whether or when such a debate would take place, because that is not solely for me. I will reflect on that important point.
Once again, I thank everyone who has worked on the bill. Other spokespeople have commented on the civil service team in particular, and I have mentioned the assistance of the parliamentary authorities. It is a tribute to them and to members that we have been able to deal thoroughly professionally with a bill that was introduced in a relatively short space of time and which has been taken through with minimal disruption to the rest of the parliamentary process.
I hope that members will continue to give their support at decision time and that we will be able to progress matters as expeditiously as possible.
That concludes the stage 3 debate on the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill. Members will be aware that the next item of business is the Student Fees (Specification) (Scotland) Order 2006. As a result of the decision to suspend standing orders, we have a precise 30 minutes for that debate, which will begin at 4.30. I suspend the meeting until then.
Meeting suspended.
On resuming—