The next item of business is a debate on motion S4M-10090, in the name of Roseanna Cunningham, on the Courts Reform (Scotland) Bill. I will allow a few moments for people to change their seats.
I call Kenny MacAskill to speak to and move the motion in the name of Roseanna Cunningham. Cabinet secretary, you have a maximum of 10 minutes but less would be better, if that is possible.
16:22
I am delighted to open this stage 1 debate on the Courts Reform (Scotland) Bill. I record my thanks to the Justice Committee for its consideration of the bill and my thanks to the many stakeholders who have contributed to the process.
It was back in 2007 when my predecessor, Cathy Jamieson, asked Lord Gill to undertake a review of civil justice. Lord Gill and his review team undertook an extremely comprehensive and thorough review over a period of two years, receiving more than 200 consultation responses. The review reported in 2009, making more than 200 recommendations to improve what it described as the “slow, inefficient and expensive” Scottish civil justice system. The bill takes on the majority of Lord Gill’s recommendations and will put in place reforms that he recently described as being “50 years overdue”.
The main principles of the bill are that the right cases should be heard in the right courts, that unnecessary delays and disproportionate costs to users should be minimised and that the efficiency of the courts should be increased. I am pleased that the committee welcomed the general principles of the bill and broadly agrees with many of the proposals, including those on the creation of summary sheriffs, simple procedure and increased specialisation, and that the exclusive competence of the sheriff court should be increased significantly in order to deliver the reforms.
The vision is that personal injury cases, for example, will be dealt with in a new national specialist personal injury court by specialist sheriffs, with procedures that facilitate swift and appropriate settlement at a more proportionate cost to litigants. Personal injury litigants will continue to be able to raise their claims in their local sheriff court if that meets their needs. There will also be a renewed focus on specialists at the shrieval level, and the Lord President will be able to designate areas such as family law, commercial law and personal injury cases as specialisms.
I turn to the exclusive competence of the sheriff court, in relation to which there have been calls for a lower threshold than £150,000. We will consider all views, although we believe that £150,000, which was the figure set by Lord Gill in his review, is the appropriate level. That is why we consulted on that figure and included it in the bill.
It is important to ensure that any new level that is set for cases raised in the sheriff court reflects the fact that, at present, too many low-value cases are being raised unnecessarily in the Court of Session. That results in increased costs for all parties involved and deters other types of litigation from being raised there. It is also important to ensure that the exclusive competence level allows a suitable amount of business to transfer to the new specialist personal injury court. On the attempts to lower the exclusive competence, the lower the level, the less chance we have of delivering more proportionate costs to litigants.
Lord Gill’s review chose the figure of £150,000 on the basis that, on average, the sum sued for at the beginning of a case is three times higher than the settlement figure at the end of a case. Those who advocate a lower limit of £20,000 to £50,000 base those figures on the sum settled, but that would be unworkable as the sum settled is not known at the beginning of a case, when a decision needs to be taken on which court it is to be raised in. Sheriff Principal Taylor stated to the Justice Committee that a limit of £50,000 would mean that cases of a value of around £17,000, on average, would continue to be heard in the Court of Session.
There are those who say that we will see a deluge of cases descending on sheriff courts, but that will simply not be the case. The personal injury court will be up and running to coincide with the increase in exclusive competence. Lord Gill told the Justice Committee:
“I am absolutely certain that the capacity exists in the sheriff courts to absorb all of the business, even with the closure of the outlying courts.”—[Official Report, Justice Committee, 22 April 2014; c 4541.]
Figures provided by the Scottish Court Service suggest that approximately 2,700 cases will transfer from the Court of Session. We should compare those figures with the caseload of 72,510 civil cases in the sheriff court in 2012-13, which is a decrease of around 10 per cent since 2011-12 and a decrease of 43 per cent—or more than 50,000 cases—since 2008-09. Despite that fall in cases in the sheriff court, the Court of Session caseload has remained relatively stable, with personal injury cases making up almost 80 per cent of all cases in the general department.
The vast majority of personal injury cases settle before they come to a court hearing. On personal injury cases, Lord Gill said:
“only a tiny fraction of the cases that are in the Court of Session ever get to proof. They are settled and dealt with administratively, and that is it ... If that is the situation, they can be dealt with equally well administratively in the sheriff court at much lower cost and where the infrastructure is also in place.”—[Official Report, Justice Committee, 22 April 2014; c 4536.]
We have heard some concerns that litigants would no longer be guaranteed automatic sanction for counsel in cases that are to be raised in the new personal injury court. Under the bill, complex cases can be remitted to the Court of Session, where sanction for counsel is automatic. In my experience, asbestos cases are often very complex, so we would expect those cases to be remitted to the Court of Session. However, as Sheriff Principal Taylor said to the committee, even if those cases were not remitted to the Court of Session, they would almost certainly merit sanction for counsel.
The cabinet secretary mentioned asbestos cases. Over the years, he and others in the Parliament have done a lot of work for asbestos victims and their families. What extra measures will he take to ensure that their interests are not diminished in the face of the power of the insurance industry and the money that it will spend to defend cases?
That is a fair point. It is important to put on record that the whole purpose of Lord Gill’s review is to ensure that we get access to justice because the system is “slow, inefficient and expensive”. I have narrated that, but it also important to mention Sheriff Principal Taylor’s additional point, because it is not simply about complex cases, such as asbestos cases, going to the Court of Session. Sheriff Principal Taylor made it quite clear—and we will respond to this point in due course—that sanction for counsel applies on the basis of not just the length of a case or its complexity, but equality of arms.
If an insurance company or another party to the action turns up with Queen’s counsel or an advocate, parity will be important—indeed, in fairness, equality of arms indicates that there should be parity. That means, I think, that Sheriff Principal Taylor is looking at an extension—not simply the length and complexity of a case but equality of arms. I hope that those points reassure Mr McNeil, who makes a valuable point that is echoed by Clydeside Action on Asbestos, which, as everyone in the chamber knows, does an outstanding job.
I expect to announce the Scottish Government’s response to Sheriff Principal Taylor’s review before stage 2 of the Courts Reform (Scotland) Bill. I have commented on this already, but the review recommends that the sheriff should be able to ensure that no party gains an undue advantage by virtue of the resources that are available to them. Sheriff Principal Taylor also told the Justice Committee that it is very rare for sanction for counsel to be refused in the sheriff court.
In addition, we have agreed to lodge amendments to the bill to ensure that the test for remitting cases from the sheriff court to the Court of Session—where sanction for counsel is automatic—is not too strict.
In relation to workplace injuries, under section 69 of the Enterprise and Regulatory Reform Act 2013—a reserved piece of legislation—the strict liability of employers for workplace accidents is removed. The Scottish Trades Union Congress argues that that will make it harder to bring workplace injury cases. I have had discussions with the STUC and we are considering what, if anything, we can do to mitigate the effects of that change, which has been brought about by the Government in Westminster.
We have taken stakeholders’ views and we are actively considering the Justice Committee’s report. I am happy to continue engaging in discussions with Clydeside Action on Asbestos, the STUC and others and to reflect on views as the bill progresses. However, we cannot undermine the fundamental principle of the bill, which is to deliver efficient and affordable civil justice, as Lord Gill intended.
Lord Gill has stated that the system is ready; that litigants will benefit from the reforms; and that the reforms are long overdue. The bill will ensure that our civil justice system becomes more accessible, affordable and efficient.
I move,
That the Parliament agrees to the general principles of the Courts Reform (Scotland) Bill.
Thank you. I advise members that we are very tight for time. I call Christine Grahame to speak on behalf of the Justice Committee. You have a maximum of seven minutes.
16:32
I welcome the opportunity to speak on behalf of the Justice Committee on this significant and complex bill, which, thankfully, has been without huge controversy.
As the cabinet secretary said, the bill broadly implements recommendations from Lord Gill’s Scottish civil courts review. I thank those who provided written and oral evidence to the committee on the bill. We received 71 written responses and six supplementary submissions, and heard evidence over five meetings. I also thank the Finance Committee and the Delegated Powers and Law Reform Committee for their reports, and finally I thank team Justice Committee, because of all that we have been through together. To be frank, with the prospect of stage 2 of the Criminal Justice (Scotland) Bill and the bill that we are discussing today, we would have been on our knees. We even got out yesterday—for a change—to visit the High Court and the Court of Session, which made tangible some of the proposals in the bill. It was a very interesting day, but I do not think that we will have many more visits.
The committee welcomes the general principles of the bill. From the evidence that we heard, there is no doubt that court reform is long overdue. However, in certain areas we remain to be convinced that some of the measures will achieve what they set out to achieve. That is us doing our job, in my book. I will highlight—if I have time—four key areas of the bill about which the committee has specific comments to make.
The first area is the privative jurisdiction of the sheriff court. The bill proposes to increase the sheriff court monetary threshold from £5,000 to £150,000, following the Gill review. Much of the evidence that we heard supported the principle of raising the threshold, but many witnesses said that £150,000 is a bit too high. The committee noted that the courts in Northern Ireland hear cases with values of up to £30,000, while in England and Wales cases cannot be raised in the High Court unless they have a value of £25,000 or more. In evidence, some witnesses argued for a staged increase, with figures of £30,000 and £50,000 being suggested. However, Lord Gill made clear to the committee his view that £150,000 is an appropriate limit.
The committee supports the proposal to increase the privative jurisdiction of the sheriff court but considers that the leap to £150,000 may be too great. We do not support staged increases, but we have recommended that the Scottish Government considers introducing a lower limit.
We also heard evidence on the impact of a higher monetary threshold on access to counsel. The Faculty of Advocates expressed concern—we would expect that—about the impact that that would have on the bar. Some junior members of the faculty highlighted that the work that would be transferred out of the Court of Session would be work that has traditionally been undertaken by junior members of the bar. The concern was that they might then decide to look for other work, thereby draining the profession of talent—they were speaking up for their profession, quite rightly.
Sheriff Principal Taylor recommended that the existing test for sanction, which the cabinet secretary referred to, should be expanded to include a general test of reasonableness and the need to have regard to the resources deployed by the other party to the case, which is the issue that Duncan McNeil raised and which is known as the equality of arms factor. The committee thought that the recommendation made sense, so we recommended that the Government lodge an amendment at stage 2 to introduce that new test.
We certainly agree with the remit of cases between courts. There was general support for the proposal in the bill to ensure that cases are heard at the appropriate level.
The bill introduces a new test—that of exceptional circumstances—for allowing the Court of Session to take into account its business and operational needs before a case is remitted. We heard concerns from witnesses about that. For example, the Faculty of Advocates suggested that the test was “far too restrictive”, and the Forum of Insurance Lawyers argued that
“discriminating between cases on the grounds of ‘operational needs’ may not achieve the stated aim of justice”
as that could lead
“to lack of consistency in the way in which similar cases are dealt with.”
Significantly, Lord Gill raised concerns about the appropriateness of a court refusing a remitted case because of
“business and other operational needs”.
He suggested that that test might breach the European convention on human rights. The minister subsequently advised that she had reflected on those concerns and would consider the level of the test, with a view to lodging an amendment at stage 2. We welcome that.
In general, the committee considered that a test for the remitting of cases is a necessary safeguard to ensure that the most complex and serious of cases can be heard in the most appropriate court with the most appropriate level of legal representation.
To reduce the pressure on sheriff courts, the Gill review recommended the creation of a specialist personal injury court that would be based at Edinburgh sheriff court. The review
“expected that personal injury claimants would still have the right to sue in any sheriff court with jurisdiction.”
The bill makes provision for the Scottish ministers to give effect to that recommendation through secondary legislation. It allows for
“the establishment of a specialist personal injury court in Edinburgh and/or other locations, and for other types of specialist court to be created”,
such as a commercial court. The policy memorandum envisages that two specialist sheriffs would be required to staff the new court, and in evidence there was widespread support for the creation of a personal injury court. However, concerns were raised about the capacity of the new court by the Educational Institute of Scotland, the Law Society and the Faculty of Advocates, among others.
Having noted the concerns of witnesses, we recommended that the court be established before the new level of privative jurisdiction is introduced so that it is fully equipped with electronic and administrative systems to ensure that it can work effectively from day 1.
I move quickly on to appeals, on which the committee made an important point. The bill provides for a nationwide sheriff appeal court to sit as a bench of one. It also allows appeals to be heard either by sheriffs principal or by sheriffs of five years’ standing, who would sit as appeal sheriffs. Their judgments would be binding across Scotland.
Those provisions differ slightly from those in the Gill review, which considered that the sheriff appeal court should sit as a bench of three, with at least one being a sheriff principal. In evidence, Lord Gill accepted that the Scottish Government had reached a different view. When pressed, he confirmed that his personal view would be to have at least one sheriff principal sitting, even when the court considered procedural matters. The committee welcomed the establishment of the sheriff appeal court, with decisions that would be binding on sheriffs and justices of the peace across Scotland. However, we considered that all appeals should be heard by sheriffs principal rather than sheriffs.
Yesterday, when the committee had the opportunity to get a breath of fresh air by going to visit the Court of Session and the High Court, we visited the Judicial Institute for Scotland’s learning suite, where judges go through continual training. We found the visit useful in considering whether we will have specialist sheriffs in future. Incredible as it might be for members to believe, I found that I have lost touch—in courts nowadays, a great deal is made of electronic devices, with screens showing appeals coming in from elsewhere. All that will ease pressure on the courts, which brings my point within the context of the Courts Reform (Scotland) Bill—I had to get our wee visit in. The committee supports the general principles of the bill.
16:39
On behalf of the Labour members of the Justice Committee, I thank the clerks, and all the witnesses who gave evidence to the committee.
I assure the Scottish Government that Labour agrees that the Scottish court system requires reform. As the cabinet secretary said, it was Cathy Jamieson, when she was Minister for Justice, who instigated Lord Gill’s review. Constituents and their solicitors tell us about their frustrations, as cases such as those concerning family law, debt, eviction or antisocial behaviour take months to come to court and then are not taken on the expected date because the courts are too busy and criminal cases take precedence over civil cases. Those pressures are exacerbated in some cases by the influx of business from nearby courts that have recently been closed. We agree that action needs to be taken.
We support the creation of the post of summary sheriff to hear civil cases of under £5,000 in value, and summary criminal cases, enabling more experienced sheriffs to deal with more complex cases and relieving some of the congestion in the system. However, it will take 10 years for the complement of 60 sheriffs to be appointed, as it is suggested that, other than stipendiary magistrates, who will probably transfer across, appointment will be made only when an existing sheriff retires.
Could the member advise whether the committee sought views on the concerns that have been raised, certainly in my constituency, about the removal of honorary sheriffs and the impact that that may have on access to justice?
That was part of the committee’s report—we considered that issue.
It was in my speech but I had to cut it out because my time was cut.
Congestion in the sheriff courts is likely therefore to persist for some time. We are concerned that if the requirement for corroboration is abolished, as the Scottish Government intends, more cases are likely to come to the sheriff court and exert even more pressure on an already creaking system.
The bill replaces summary cause and small claims procedures by one simple procedure for cases under the value of £5,000. We support that. However, we do not consider simple procedure to be appropriate for certain categories of cases, even if their value is less than £5,000, such as personal injury cases and some domestic abuse cases.
In part 2, the bill sets out provisions for a new appeal process. It establishes a new sheriff appeal court to hear summary criminal appeals and civil appeals from the sheriff court. While Scottish Labour supports the creation of the new appeal court, we share witnesses’ concerns about the estimate that 95 per cent of cases will be heard by a bench of one, rather than three as proposed by Lord Gill. That would mean that in 19 out of 20 cases, a single sheriff would make nationally binding decisions that could determine case law in Scotland.
We also share witnesses’ concerns about a number of other issues. First, we are concerned about the effect of section 39, which raises the exclusive competence of the sheriff courts by 3,000 per cent, from £5,000 to £150,000. Cases brought to the Court of Session automatically have the right to counsel—that is, to employ an advocate—while cases brought to the sheriff courts do not, and counsel must be applied for. The Scottish Government estimated that that limit will result in 57 per cent of cases that currently go to the Court of Session going to the sheriff courts, leaving the Court of Session with 2,000 cases.
However, three quarters of the cases going to the Court of Session are personal injury cases. The Court of Session hears around a third of all personal injury cases in Scotland. The Association of Personal Injury Lawyers estimates that, as a result of the £150,000 exclusive competence, 96 per cent of personal injury cases would go to the sheriff courts, representing a significant reduction in the business of the Court of Session and additional strain on the sheriff courts, despite the creation of a specialist court.
We believe that the £150,000 limit is too high in relation to average incomes in Scotland, where the average male full-time annual income is £29,300 and the average female income is £23,600.
Claims for loss of future income, due to an accident at work for example, are unlikely to be for five or six times the annual salary, so a case brought by an employee relating to loss of income is unlikely to go to the Court of Session and have the automatic right to counsel. Moreover, if an advocate is employed, the worker runs the risk of having to pay additional expenses out of any award that they receive.
The high figure for privative jurisdiction compounds the problems that are already caused by section 69 of the Enterprise and Regulatory Reform Act 2013, which removes employer liability for a breach of health and safety regulations. The employer, however, or their insurance company, is far more likely to be able to employ the services of an advocate or QC. The loss of automatic right to counsel could result in inequality in representation and discrimination against the employee. Amendment to the legislation is necessary to guarantee equal access to representation. We suggest that exclusive competence in the sheriff court in Scotland should be set at a level similar to that in Northern Ireland or possibly England.
We are concerned about the resources that are to be allocated to the reforms. The bill introduces a specialist personal injury sheriff court, which we support, but only two sheriffs will be allocated to that court, which is likely to sit in Edinburgh sheriff court. We question whether that will be sufficient, given the number of cases that are likely to be transferred.
The implications for commercial cases have not been adequately considered. Currently, cases with a value of £5,000 and over can be taken in the commercial court in the Court of Session. The bill does not establish a specialist commercial sheriff court, so cases whose value is less than £150,000 will be taken in the local sheriff court. Some places might have a specialist commercial sheriff, but many will not. That is likely to disadvantage rural areas such as mine.
We have serious concerns about the financial memorandum’s accuracy on the estimated fee income, the savings to the Scottish Legal Aid Board and the savings in judicial salaries. My colleague Malcolm Chisholm, who sits on the Finance Committee and has taken evidence on the financial memorandum, will give more detail on those concerns. The Government is introducing important reforms without having identified the funding to support them.
It is disappointing that the Scottish Government’s response to Sheriff Principal James Taylor’s “Review of Expenses and Funding of Civil Litigation in Scotland” was not published before stage 1. There are overlaps between the recommendations in that review and the bill, and it would have been helpful to know whether and how the Government intends to take some of the measures forward. I hear that the response is to be issued before stage 2 but, to be frank, that is too late—we should have had it before stage 1.
We will support the bill at stage 1, although we hope that it will be amended and we consider that the financial memorandum needs to be revisited.
16:46
The bill represents years of endeavour by the Scottish civil courts review, which Lord President Gill led, and will implement overdue reforms to Scotland’s civil courts. Crucially, it is intended to improve access to justice and the court system’s efficiency and effectiveness. As such, the Scottish Conservatives will support the bill’s general principles, but the criterion of improving access to justice is the key measure by which the bill’s provisions must be assessed.
To start with the positives, the creation of the new judicial appointment of summary sheriff is good news, as are the proposals to increase sheriff specialisation and to create the new simple procedure.
In relation to judicial review, the three-month time limit and the introduction of a permission stage with the section 85 test of a real prospect of success were the subject of conflicting evidence. Those provisions could reduce access to justice, so the Government and the committee need to revisit the issue, to ensure that the bill adequately balances the importance of judicial review as a remedy for individuals and community groups with the need to ensure that it is not misused.
The bill’s sheriff appeal court provisions radically depart from the Gill review’s recommendation by proposing that the majority of cases before that court should be heard by a single sheriff, instead of a sheriff principal or, when appropriate, a bench of three sheriffs principal. As a consequence, appeals would merely substitute one sheriff’s opinion for that of another. Worse still, the appeal sheriff—who might or might not be a senior sheriff—would in effect be writing the law for the whole of Scotland.
The financial memorandum clearly states that, if a significant number of appeal cases required a bench of three, that would have an impact on the costs associated with appeals. It would be a grave mistake for the Scottish Government to depart from the Gill recommendations merely to save money.
The proposal to raise the threshold below which most actions must be raised in the sheriff court from £5,000 to a staggering £150,000 is the most contentious. The Government has now indicated that it is open to considering a lower threshold and it is worth assessing why that change of view is welcome and necessary.
The current threshold needs to be revised to ensure that low-value cases are not routinely heard in the Court of Session, but the bill’s £150,000 threshold would result in the transfer of thousands of cases to the sheriff court at a time when 10 courts are closing. That is unsustainable, especially given the evidence that some of our courts are already suffering unacceptable delays.
Only last week, it was reported that cases in Hamilton justice of the peace court, which has absorbed business from the closed Motherwell court, are suffering a nine-month delay and that fiscals are so pressured and underresourced that they do not have time to speak to defence agents at intermediate diets. Consequently, numerous cases are unnecessarily proceeding to trial. In addition, East Lothian faculty of procurators has highlighted delays at Edinburgh JP court, where trials are being set down for as late as March 2015. Access to justice is self-evidently not being served. In those circumstances, approving the transfer of thousands of cases more to the sheriff court would be an act of absolute folly.
The threshold would also compromise access to justice, particularly for victims of complex but less costly personal injury cases, as the bill makes no provision for individuals to employ counsel regardless of the fact that their opponents can and will employ counsel. As a result of that inequality, the number of cases that settle will decrease if business is transferred to the sheriff court, and costs are likely to increase as more civil business proceeds to trial.
Astoundingly, the evidence relied upon to propose the £150,000 limit was weak, being anecdotal rather than empirical. The Scottish Government has not produced any further evidence to support the contention that such a massive increase is in the interests of justice.
Therefore, it is not surprising that the Justice Committee and Finance Committee questioned the robustness of the financial memorandum, especially as it asserts that the bill can be implemented with no new resources. That is simply not credible, which is why the Scottish Conservatives will vote against the financial memorandum.
In light of those concerns, a further evidence-taking session on the effect of court closures, the bill’s proposals and resources should be held with those at the coalface, namely the Crown and Scottish Court Service staff.
Although Eric McQueen, chief executive of the Scottish Court Service, assured the committee that everything would be fine because sheriff courts were running 2,500 fewer sitting days a year compared to four years ago, he failed to mention that the court closures that are currently going through will result in the loss of nearly 2,000 sitting days. The Government has now accepted that further court closures need the approval of the Parliament, rather than only committee scrutiny so, surely, if our justice system is to be able to cope with the changes that the bill introduces, the Parliament must now be given the chance to vote on the court closures that were forced through last year.
We turn to the open debate. We are very tight for time. Speeches will be a maximum of four minutes.
16:52
This is an important debate and I wish that we had more time for it.
Yesterday, as the convener said, the committee went up town for a breath of fresh air. Our visit to the Court of Session was a breath of fresh air and I was very impressed. I take the opportunity to thank the Lord President, Lord Gill; the chairman of the Judicial Institute for Scotland, Lord Malcolm; Sheriff Welsh and Sheriff Duff for their welcome. It was a privilege to see the high-quality training environment that now exists for our judges. The Judicial Institute is fit for the 21st century, with training that uses new technologies and facilitates collaborative learning. I was really impressed to hear and see the judicial system reforming itself and reflecting the aspirations of the Scottish people in a modern Scotland.
The Courts Reform (Scotland) Bill was introduced to respond to the same aspirations. The bill seeks to implement the recommendations of the review led by Lord Gill. The tone of the review’s conclusions was strong:
“Scottish civil courts provide a service to the public that is slow, inefficient and expensive.”
It also said:
“The court system has to be reformed both structurally and functionally.”
Committee members agreed with most of the bill and supported its general principles. On page 30 of our report, we stated:
“On balance, we consider that the proposed increase in the privative jurisdiction of the sheriff court from £5,000 to £150,000 may be too great a leap.”
Let me repeat that statement: £150,000 may be too great a leap. I was the one in the committee who was not convinced that £150,000 was too great a leap. That is why paragraph 144 starts with the words “On balance” and why we thought of qualifying the first sentence with the words “may be”.
On 22 April, Sheriff Principal Taylor came to the committee and made his point very clear. He said that those who have an axe to grind would have us depart from the bill in a number of areas. One such area is that of the sheriff court having a privative jurisdiction of £150,000.
Sheriff Principal Taylor, the Lord President, Citizens Advice Scotland and the consumer champion Which? all said that £150,000 is appropriate, and I seek an assurance from the Scottish Government that all views will be considered.
Let me be clear: we heard a lot of talk of data and percentages to justify reducing the proposed threshold when we took evidence, but Sheriff Principal Taylor answered the concerns from the outset. He told the committee:
“When we selected that figure, my approach was not to consider what percentage of cases should be moved from the Court of Session to the sheriff court; my starting point was to settle on a figure for cases that I consider to be appropriate for determination by a sheriff.”
More important, the sheriff principal concluded with the following statement:
“It is a judgment call.”—[Official Report, Justice Committee, 22 April 2014; c 4516.]
A judgment call—one that I can understand. Members might recall how I spoke in another debate about the Scottish legal system’s difficulty in accepting far-reaching reforms.
I agreed with Lord Gill when he said that the present limit is utterly ridiculous, and I might add that it should have been increased a long time ago. Citizen Advice Scotland’s briefing could not be clearer when it states:
“Reducing the limit from the £150,000 limit proposed could, in practice, undermine many of the proposed reforms to court structure and specialisation.”
Here we are. The question remains: is £150,000 too great a leap? I do not think so, which is why I ask the Scottish Government and the minister to consider all views on the matter. Scotland’s civil courts system must be replaced with one that is more effective and efficient, and I am delighted that all members of the Justice Committee support the general principles of the bill.
Thank you very much. I am afraid that every second counts in the debate. Graeme Pearson, you have four minutes.
16:56
Thank you for allowing me to contribute this afternoon, Presiding Officer.
I am pleased that section 69 of the Enterprise and Regulatory Reform Act 2013 has been mentioned on at least two occasions this afternoon. The onerous responsibilities placed on litigants in pursuing cases when they have been injured at work set a context for some for the concerns that have been expressed this afternoon, in terms of the changes proposed in the bill.
First and foremost, like the cabinet secretary I believe that reform of the courts is overdue. The Scottish Labour Party supports the principles that lie behind the bill.
Trade unions and many witnesses offered evidence that the bill’s proposals overlook the likelihood of an inequality of arms in relation to proofs heard in civil cases and personal injury cases at the Sheriff Court, where the bill’s criteria on privative jurisdiction prevent parties from accessing an advocate’s services in cases that fall short of the £150,000.
I am pleased that the cabinet secretary has indicated that he is examining that approach and seemed, in his speech, to offer confirmation that no such inequality will occur after the act comes into force. It would be useful if the minister could confirm that when she sums up.
There is a recognition that there are complexities in the bill regarding decisions on where a case may be heard. What is absent is an acknowledgement that sums of much less than £150,000 can have a life-changing impact on many working families, who rely on an outcome from the court to give them some form of confidence in the future. In many cases, they would seek an advocate to represent their views. Organisations such as Which? suggested a much lower figure than £150,000, and it is obvious that flexibility to the approach at stage 2 will be essential.
Will the member take an intervention?
I am sorry—I am out of time.
The advocate’s role in the process is important. The dean of the Faculty of Advocates raised an important issue about the forensic skills that junior advocates develop to analyse, understand and assess multifaceted and complicated facts. That cases are settled without a hearing is due to the skills that advocates demonstrate when they present facts prior to the court case. Anything that reduces advocates’ opportunities to develop those skills is not a development that one would look forward to.
I must comment on the committee’s consideration of issues raised in connection with this nation’s responsibilities, in terms of the Aarhus convention. Its sympathetic call for the introduction of an environmental tribunal for Scotland would be welcomed by constituents throughout the south of Scotland in particular. Dr Rachel Connor, for example, has tried hard to obtain information from a range of public authorities on the environmental impacts affecting her home and the homes of many others in the community that she is representing. That is only one example of the need for such a tribunal to decide on such matters.
In conclusion, I am supportive of the work that the committee has done. As usual, I am astounded at the patience with which it has followed through on such matters.
Thank you. I am afraid that if members go over time by a few seconds, we will lose some members from the debate.
17:00
I refer members to my entry in the register of interests as a member of the Faculty of Advocates.
There is, as the convener of the Justice Committee suggested, no disagreement about the greater part of the bill. We need a court system that is fit for purpose, given that, as the court review concluded in 2007, the current system is “slow, inefficient and expensive”. Some of the proposed changes, such as sheriff specialisms and the introduction of summary sheriffs, carry wide support. The facility to hear generally routine matters at an appropriate level, and the freeing up of sheriffs from the less serious criminal workload seems to be sensible.
It is proposed that summary sheriffs would take up to 10 years to be fully established, and we heard evidence that they would offer flexibility. I am sure that there would be variation throughout Scotland in how they would operate, particularly in more remote areas.
The use of technology provides opportunities to reduce expense and the time that is spent on the court process substantially, and must be at the forefront of any court reform, together with procedural rule changes that encourage case management.
Although more work will be passed to summary sheriffs, sheriff courts will, in turn, receive work that is currently heard in the Court of Session. I was struck, however, by the agreement that that could not be delivered by sheriff courts operating as they do at present. Across the board, from the Lord President down, we heard concerns about the expense and inefficiency that comes not only from criminal work taking precedence in sheriff courts, but from the routine frustration of civil cases being heard over many diets and not being resolved at one sitting. Some of the concerns that were expressed on a change in the privative jurisdiction seemed to be based on that experience.
With regard to the proposed specialist personal injury court, my impression is that it would be welcomed—provided that it was properly resourced. It would need to replicate the best features of the current chapter 43 procedure in the Court of Session. If it could do so more economically than it, so much the better.
The committee was right to express its reservations on the proposed change to the privative jurisdiction. In particular, on the proposed change for non-personal injury cases, paragraph 98 of the financial memorandum suggests that the savings to the public purse will be “marginal”. We also have no information on the geographic spread of approximately 700 cases that will be transferred to the sheriff court on that basis; that matter is not specifically dealt with in the Gill review.
By common consent, the commercial procedure in the Court of Session works well. Sheriff Principal Taylor made the point in evidence that Glasgow sheriff court deals competently with commercial cases whose value exceeds £150,000. I am sure that that is true, but the proposed changes will not affect that. What they will do, in the absence of a national commercial court like the proposed specialist PI court, is prevent people in Wick or Stranraer with cases of a monetary value of less than £150,000 from having the option of having their case heard in Edinburgh, unless it is deemed to fall under the conditions of the test for remit. I am pleased by the Government’s comments on remit. In addition, as the Lord President said in oral evidence, some oversight by the court of session of decisions on remit might be not inappropriate.
With regard to the sheriff appeal court, the committee’s report says it all. On judicial review, the bill proposes quite substantial changes, and it is certainly sensible to have some time limit for bringing a petition, even if many of our witnesses thought that three months was too short. We should bear in mind that judicial review is comparatively rare, particularly outside immigration and asylum cases, so at any preliminary hearing for leave to bring a petition, the test should not be set too narrowly.
Finally, the elephant in the room is the question of sanction for counsel. I accept the need to curb disproportionate costs, and I welcome Sheriff Taylor’s proposed revised test. I heard the cabinet secretary’s comments to the committee on the history of the Faculty of Advocate’s comments on previous reforms, and I understand and largely share his view. Nevertheless I remain concerned that current proposals may well be to the detriment of the junior bar. The net result may simply be to encourage the already substantial growth of larger firms of solicitors at the expense of the bar, which may not necessarily represent best value for court users in the long term.
17:04
Following Lord Gill’s review of the civil courts, he described the existing system as
“failing to deliver justice ... expeditiously, economically or efficiently.”
Scottish Liberal Democrats agree with many of his recommendations, which compel Parliament to modernise Scotland’s court structures and procedures, and to equip them to better respond to the demands that are placed on them. However, in the few minutes that are available, I will focus on just some of the issues that the substantial package of reforms has inevitably presented.
One of the most contentious issues is that of the proposed jurisdictions of the Court of Session and the sheriff court. There now appears to be a consensus that increasing the privative jurisdiction of the sheriff courts to £150,000 would set the bar far too high. Although transferring some business from the Court of Session is not objectionable, that would be too significant a leap from the existing £5,000 threshold and would be considerably higher than the equivalent limits elsewhere in the United Kingdom. The evidence that informed the revised jurisdiction was scant, and the Scottish Parliament information centre said that even what evidence there is should be “treated with care”.
Furthermore, organisations from Unison to the Faculty of Advocates are worried that the proposed shift in business will remove the right of many litigants to be routinely represented by counsel, which would have implications not only for access to justice but for the possibility of attaining early and efficient settlement of cases. I am therefore grateful to the minister for indicating that she is open to considering a lower limit at stage 2.
During our stage 1 deliberations, I also queried the appropriateness of sections 88(4) to 88(6), which contain three tests to help to establish whether to remit a case to the Court of Session. I am pleased that Lord Gill subsequently agreed that the tests were “too high” and
“almost certainly ... in breach of the European Convention on Human Rights.”
Again, I appreciate the minister’s commitment to heed that advice and to lodge amendments on that at stage 2.
I suggest that we must also return to other issues, including the need to ensure that sheriff specialisation is properly developed in rural areas, and whether the limit for bringing applications for judicial review is overly restrictive, particularly in the light of the fact that the Scottish Government has confirmed its understanding that the time limit will supersede the time limits in the Scotland Act 1998 and the Human Rights Act 1998, so that judicial reviews on human rights grounds will have to be brought within three months, rather than within the current time limit of one year.
The committee, along with my colleagues Liam McArthur and Tavish Scott, is concerned about the impact that the abolition of honorary sheriffs, who are crucial in the absence of a resident sheriff, could have on island and remote communities. We believe that robust alternatives must be established to prevent the further erosion of locally delivered justice.
It would be remiss not to note that more local courts will shortly close. Courts in 10 towns have already shut and those in Stonehaven, Arbroath and Cupar will follow next Friday. Whether the remaining courts, such as Aberdeen, which is already close to capacity, will be able to cope with the increase in business that the bill could initiate, as well as the influx of business from the closure of their neighbours, remains to be seen.
Many of the recommendations of the Gill review are sound. There is broad consensus on the need to address the disproportionate cost of litigation, to increase specialisation among courts and judges, and to improve efficiency through adopting a case management approach to the conduct and disposal of court business. However, I share the concerns that the Finance Committee expressed in its report on the bill that the financial memorandum is at best incoherent and at worst sorely deficient. The committee’s observations on the need to clarify how the purported costs and savings will be achieved—for example, on the specialist personal injury court and legal aid—must be heeded.
I am therefore disappointed that the Scottish Government has not provided an update, let alone a full response, to the Finance Committee’s concerns prior to the debate. In the absence of that, Scottish Liberal Democrats will support the general principles of the bill, but we cannot endorse the financial memorandum, on the basis that it has not been shown to be sufficiently robust.
17:09
I thank the previous speakers for their comprehensive speeches. In fact, they were so comprehensive that they have left with me with very little to add, but I will do my best.
I have a personal interest in how the personal injury court will enable access to justice, particularly for Clydeside Action on Asbestos. Concerns have been raised with regard to access to counsel. In that respect, I welcome comments that were made by the minister Roseanna Cunningham, who has said:
“I want to say very clearly that in creating the new personal injury sheriff court, we are creating a venue where such cases will be able to be raised and dealt with more quickly and effectively by specialist sheriffs, using new personal injury procedures, and be heard at a more proportionate cost to the families concerned, due to lower lawyer fees. And where families are faced with more complex cases they will still be able to raise their cases in the Court of Session and get access to counsel where this is appropriate.”
I thank the minister for making that very important point, and I thank the cabinet secretary for reiterating it in his earlier remarks. It is important that we put those views on the record to ensure that people know what the personal injury court stands for.
My colleagues Christine Grahame and Christian Allard have already mentioned yesterday’s visit to the Court of Session and the High Court in Edinburgh, and I thank the committee clerks for organising the visit and the courts for facilitating it. We saw modern technology in action—the television video links were very impressive—and the excellent work that everyone from judges to clerks is carrying out. Everyone works together; I believe that that is what modernisation is about. When we visited the Judicial Institute for Scotland learning suite, Lord Gill said that it is a first and made it clear that the way we are modernising the court system is much envied throughout the world. In fact, we are so forward thinking that the system is being replicated in Islamabad. We should be very proud of the fact that the Scottish courts system is at the forefront of this work.
Aside from the fact that all the other issues that I wanted to raise have been covered, I am making so much of the visit not only because it was impressive but because it showed us how we can modernise the courts. That is what the bill is all about. It is not just about access to justice for people, but about modernising the courts, which, as previous speakers have pointed out, is badly needed. Indeed, as Lord Gill has said, the system is 50 years behind the times.
Having never visited the courts before, I was very impressed by the work that they and, in particular, the judges carry out. The way we are modernising the system leads the world; if the approach is being replicated in Islamabad as well as in other countries, it must work—and it can work for the whole of Scotland’s court system. I look forward to taking the proposals in the bill and the views of the committee to the rest of the Parliament, and I am sure that everyone will welcome the modernisation of the court system.
17:12
There is general support for court reform. Yes, we want to modernise Scottish courts; yes, we want to make the system more efficient; and yes, we want it to be less expensive and more accessible to users. However, it is not the stated aims but the measures that are supposed to deliver them that require scrutiny. I am concerned that some of the bill’s proposals appear to erode rather than strengthen users’ rights. Of course, that issue can be addressed at stage 2, and I hope that the Scottish Government will be consensual and accept Opposition amendments.
One of the main areas of dispute in the bill is the value of cases to be moved from the Court of Session to the sheriff court—a matter that was reviewed by Sheriff Principal Taylor. With regard to the proposal for the sheriff court to have a privative jurisdiction of £150,000, Sheriff Principal Taylor admitted that the figure was not chosen on the basis of the percentage of cases that would be moved from the Court of Session to the sheriff court; instead, he referred to it as “a judgment call”. In other words, it was simply what he considered to be appropriate for determination by a sheriff, and the highest amount that would be appropriate for the sheriff court. It was not chosen after consideration of the practical consequences for the functioning of courts.
Sheriff Principal Taylor also told the committee that, although the average sum that is sued for is more than £150,000, the average sum that the pursuer receives is less than a third of that. We can see from the figures the number of cases that would transfer and the pressure that that would put on the sheriff courts.
There are significant doubts about whether funding and resources are adequate to back up the proposals. If they are not, it could result in delays for those who use the courts system, and it could have other adverse impacts. I therefore call on the Scottish Government to give assurances that it will address that issue if the figures in its financial memorandum are shown to be overly optimistic.
We must also address inequality of arms. The restriction of litigants’ access to counsel is a matter of widespread concern, and many people would be happier if the bill were amended to ensure that it will not introduce obstacles to achieving equality of arms. Trade unions and solicitors have argued that, particularly in personal injury cases, victims of every workplace injury and disease must be entitled to raise their actions at the specialist personal injury court and have the automatic right to access, or a presumption in favour of accessing, representation by counsel. There were also strong arguments that asbestos cases, although 95 per cent of them are worth less than £150,000, should be dealt with by the Court of Session, given their complexity. The complexity of cases is not necessarily driven by their value.
In conclusion, we need to ensure that litigants can still access representation by counsel when they need it, in order to prevent the balance tipping in favour of defending employers and insurers.
17:16
I feel that I am something of an interloper in this debate, as I was not on the Justice Committee through the process, but the subject is fascinating and I would like to make a few points, particularly from the perspective of the Delegated Powers and Law Reform Committee.
As I understand it, the bill talks specifically about a personal injury court, but not about other specialist courts; it merely facilitates them. The Delegated Powers and Law Reform Committee challenged whether that should be subject to consultation. The Government came back robustly and said no, that it feels that the court service should be able to establish its own specialist courts as it sees fit, and that it would do its own consultation. In retrospect and on reflection, that seems to me to be entirely appropriate.
I take on board Rod Campbell’s earlier comment about the fact that there might be a commercial court in Glasgow, but remoter regions might struggle to get that kind of service. It occurs to me that it would be entirely appropriate for the Lord President to set up a commercial court in Aberdeen or wherever, perhaps for the time being, to deal with those things. He really does not need our advice on how to do that.
It seems to me that it is a very good thing that the sheriff court appeals system should be binding nationally. There is very little sense in holding on to the idea that sheriffs principal should make appeals only for their sheriffdom. However, I wonder whether the idea of a single sheriff on the bench at appeals is the right way to proceed. I think that history tells us that appeal cases are often improved if there are three members on a bench. I recognise that there would be a cost implication to that, but I suspect that that might be where we want to go with appeals.
Finally, Citizens Advice Scotland pointed out how important in-court advice can be. A way of avoiding litigation and the lawyers is to get people talking to each other sensibly beforehand. I commend to the Government its doing all that it can to ensure that there is more of that.
17:18
I am on the Finance Committee, which looked at the bill’s financial memorandum. It seems to me that there are three major mysteries and a few minor mysteries about it.
First, there will be a loss of fee income, but we are told that it will have a negligible effect. Secondly, there will be an increase in the sheriff court workload, but again, there will be a negligible effect from that. Thirdly, there will be a big reduction in the legal aid budget, but for no obvious reason.
On fee income, we are told in paragraph 75 of the financial memorandum that 80 per cent of personal injury cases will go to the sheriff court. The Association of Personal Injury Lawyers thinks that the figure will be higher than that, at 96 per cent. If we stick with the figure of 80 per cent, in accordance with a freedom of information request by the association it seems that £1.1 million will be lost in fee income through that change, because much less is charged in the sheriff court than is charged in the Court of Session. The Finance Committee wanted to know whether the result of that would be an overall increase in court fees. Obviously, there would be concerns about that.
The Finance Committee also felt that there is a mystery about the increase in sheriff court workload. The bill team told us that there would be no increase in sitting days at the sheriff court, but the intention behind creating the £150,000 threshold, of course, is to remove a substantial part of the Court of Session’s business. Therefore, there seems to be a contradiction.
Margaret Mitchell described in great detail the pressure that the sheriff court is already under: it is overcrowded, there are closures to come and we are told that cases that are expected to last for four days are rarely heard on consecutive days. In addition, the reduction in the number of cases, which the cabinet secretary told us about today, does not correspond to the amount of judicial time spent. The Association of Personal Injury Lawyers made the point that the 36 per cent reduction in the number of cases that has been flagged up by the Government is mainly from debt or repossession cases that are usually undefended.
Many complex cases will transfer to the Court of Session. I was told very recently of two medical negligence cases in the Court of Session that have two judges and three to five weeks to be heard. That kind of case will transfer to the Court of Session. There is therefore a great mystery about the workload of the Court of Session and how that will be managed.
The other mystery, of course, is to do with the legal aid savings. We were told that a lot of that is to come from a 50 per cent reduction in use of counsel, but the cabinet secretary said today that it is very rare that sanction for counsel is refused in the sheriff court. He was very reassuring about concerns that were raised by, for example, Clydeside Action on Asbestos and by people in my constituency who have claims for asbestos harm. He said that they would get counsel, but a lot of the savings from the legal aid budget are because of cases not having counsel any more. Over and above that, of course, is the fact that most costs are recovered and are not in any case put against the legal aid budget. There is therefore a great mystery around the savings on the legal aid budget, and the committee was very concerned about the fact that the bill team could not answer our questions about that.
I think that I have not very long left.
Twenty seconds.
I will make three minor points. It was flagged up that there will be substantial costs in creating a new training programme for specialist sheriffs, that the whole information technology budget for the specialist personal injury court is only £10,000, and that there is no proposal to reduce the number of judges in the Court of Session. The question is, therefore, how there will be any savings from moving business out of the Court of Session.
Many thanks.
17:22
It is a welcome focus for the Justice Committee to be looking at civil rather than criminal matters. Like my colleagues, I support the principles of the bill. I also support the specialisations that are to take place and the summary sheriffs. Some of the specialisations, particularly for domestic violence and family law, are going to require a great deal of specialism. It was unhelpful that the term “low value” was used to class specialisations. We need to be very careful about our terminology—we heard that very graphically from Scottish Women’s Aid.
It was in 1587 that the Scottish Parliament gave the accused the statutory right to be represented by counsel, which was 150 years before that right was afforded in the jurisdiction immediately to our south. Even earlier than that, in 1424, the Scottish Parliament enacted legislation requiring the appointment of advocates to represent poor litigants. The Faculty of Advocates tells me in a document:
“The principle that legal representation should be available to all who need it is built into the DNA of our society.”
I do not think that anyone would dispute that.
We are told that the purpose of the bill is to improve efficiency, effectiveness and proportionality. As we have heard from a number of speakers, it is certainly the view that the Court of Session operates very effectively. We have heard assurances from Lord Gill about the sheriff courts, but clearly we have also heard concerns about that. It is not simply about the technology, not least because the personal injury court is likely to occupy the same building; it is about the procedures that are going to be adopted. We have heard that they are expected to result in cost savings.
Sanction for counsel is an issue that I place great store in. It was a key aspect of the evidence that we heard from the EIS, the Scottish Police Federation and the Scottish Trades Union Congress. The STUC talked about the imbalance inherent in the employee-employer relationship, nowhere more so than in health and safety. The STUC also acknowledged that that imbalance was in part addressed by health and safety laws, which as we know are reserved, and a court system that ensured that workers had access to the best representation and were certainly never going to be outgunned in terms of representation. What we heard from the cabinet secretary on equality of arms is therefore certainly welcome.
There has been some discussion about section 69 of the Enterprise and Regulatory Reform Act 2013. I see that as a further attack on workers’ terms and conditions. We know that are no simple health and safety cases at this time. I welcome the personal injury court and the discussion, which needs to be on-going, about sanction for counsel, the complexity of cases, the length of cases and, not least, the equality of arms. We often have discussions about what should be in the bill and what should be in guidance, and I am keen that we do not have to rely on benevolent interpretation of guidance. I will therefore propose an amendment to have a statutory presumption in favour of sanction for counsel in relation to work-related incidents.
In the short time that is left to me, I commend the fact that our report talks about an environmental justice court. I encourage the Scottish Government to stick to its 2011 manifesto pledge on that issue. The issue was raised in answer to Patrick Harvie. It is important that we adhere to the Aarhus convention. The most important thing is that our civil justice system serves the people, but it is important that we do not throw out the baby with the bath water as regards the service that we have had from various people, not least the advocates.
The rural dimension has been considered. I assure Liam McArthur that it has been addressed. Justice needs to be accessible to everyone, regardless of location. I am content that we are going to address those matters on an on-going basis.
17:26
I declare a historic interest: once I was a solicitor. I remember that, even then, our sheriff court model attracted widespread admiration because of the flexibility of jurisdiction that it offered and, of course, because of the local provision of justice. That is what many of our constituents expect from the justice system. They want an accessible and workable court system.
Of course, that assumes that there are sufficient courts in Scotland to enable cases to be heard without litigants, witnesses and the accused having to rack up expense and travel many miles to get to court.
There is an important backdrop to the bill, which a number of members have alluded to. It is worth bearing in mind that Lord Gill introduced the proposals that are the basis for the bill in 2009, when we had many more courts operating in Scotland than we do now. Already, we have lost three sheriff courts and six district courts. In just over a week, we will lose a further three sheriff courts with their related district courts and, next January, we will lose a further four sheriff courts and four more district courts. That amounts to one fifth of our sheriff courts, many of which are in our more remote areas. However, the very changes that are proposed by the bill will create expanded and busier sheriff courts. There is serious disconnect in that.
I have noted the opinion of Lord Gill, whom I respect highly, but I ask the Scottish Government what survey has been made of the remaining 39 sheriff courts to assess the capacity of the infrastructure for a major expansion of cases, and what assessment has been carried out of the likely number of sheriffs that is necessary to service additional case load. Without answers to those basic questions, there can be no guarantee that the bill, if enacted, can be implemented in practice. Further, has there been any revisal of the closure proposals, given the new anticipated workload and the greater distances that will confront some members of the public when they access their nearest sheriff court?
Given the explicit reservations about the robustness of the financial memorandum which, in the interest of time, I will not repeat, and due to the possibility of further as yet unquantified costs, my party is unable to support the financial memorandum, but we will support the bill.
I will deal with a couple of specific aspects. The creation of a sheriff appeal court to hear appeals against the decisions of sheriffs in civil and summary criminal matters might sound logical, but only if it is an appeal court. The Gill review recommended that such cases should be heard by three judges, but that is not what the bill is delivering, and the financial memorandum assumes that 95 per cent of appeals will be heard by only one judge. Further, such a judge need have been a judge for only five years.
I do not like that. The current system of appeals to the sheriff principal is better than that proposition. If we are to have a sheriff appeal court, it must have a panel of three judges, who should be elected from existing sheriff principals, and another sheriff or sheriffs with expertise appropriate to the case.
In conclusion, I raise the matter of judicial review. This process might be the only means of challenge left to an individual who feels unfairly treated by the relative might of officialdom. If we are serious about achieving fairness and addressing inequality, we should be vigilant about the rights and interests of the individual. The cost of a judicial review application will weigh heavily with any litigant, and no one will undertake such a course lightly. A three-month time limit might be completely insufficient for the task of preparing a complex application and investigating whether the applicant can afford the process. I fear that such a restriction will weigh the scales against the individual in favour of the state, which is regrettable.
Given that judicial review can be the last bastion of justice for the individual, why is leave of the court required to make a judicial review application? I urge the Government seriously to consider extending the three-month time limit and removing the requirement for the court’s permission to make a judicial review application.
17:30
I will concentrate on a few issues that have been pertinent to the debate.
First, on the accuracy of the financial memorandum, which Malcolm Chisholm spoke about, the calculation on fee income is dubious. The Court of Session collected £2.2 million in fees in 2012-13, from 2,801 personal injury cases; the sheriff court collected £873,492 from 3,240 cases. On the basis of Government figures, there could be a loss of £1.145 million in fee income, and the Association of Personal Injury Lawyers estimates that if 96 per cent of cases transfer, there will be a loss of £1.4 million in fee income. The financial memorandum takes no account of the loss of income to the courts and its effect on court fees.
The figures for savings to the Scottish Legal Aid Board are also suspect. According to paragraph 96, the board spent £3.1 million on counsel in 2011-12 and £2.4 million in 2012-13. It says in paragraph 97:
“there could be savings up to 50% of expenditure on counsel ... as not all cases will require the expertise of counsel in the sheriff court.”
Malcolm Chisholm made pertinent points about that. Ronnie Conway of the APIL described the figures for savings to the board as “smoke and mirrors”, given that the defendant normally pays counsel if they lose the case and given that most cases are undertaken on the basis of no win, no fee. Any savings would therefore accrue to defendants’ insurance companies rather than to the Scottish Legal Aid Board or the public purse.
The figures for savings from judicial salaries in the financial memorandum are also questionable. It says in paragraph 83 that there is the potential to save £57,000 as a result of using personal injury sheriffs rather than outer house judges. In paragraph 112 there is reference to
“a recurring saving in judicial salaries of between £162,000 and £166,000 per annum”
as a result of the employment of appeal sheriffs instead of inner house judges. However, the judges will still be employed, and they will continue to sit in the Court of Session and the High Court. Even if they have less work to do, they will have to be paid, so I cannot see how those savings will materialise.
Rod Campbell talked about the resourcing of the specialist personal injury court, but I question whether two sheriffs will be sufficient. The ratio of judges to cases brought in the Court of Session is 1:154, and currently in the sheriff court the ratio of sheriffs to cases brought is 1:556. The Government estimated that 2,000 personal injury cases would transfer to the sheriff courts, so a sheriff in the specialist personal injury court will potentially have 1,000 cases to deal with.
Currently, personal injury cases in the Court of Session proceed timeously. If a date is set for a hearing, the pursuer and the defendant know that the case will probably be taken on that date. I am told that that helps to concentrate minds and generally results in settlement before proof is taken. However, in the sheriff courts cases are often not taken on the date that has been set and there is not the same stimulus to settle out of court. If the specialist personal injury court is overloaded because there are not enough sheriffs, it might become the norm for cases in that court not to be taken on the date set, and assumptions about a high proportion of cases settling before proof might not be realised.
Graeme Pearson, John Finnie and John Pentland talked about the exclusive competence of the sheriff court and equal access to representation. In evidence, the STUC, several trade unions, the APIL, the Faculty of Advocates and the Law Society of Scotland all raised equal access to representation. Although the employee could apply to the sheriff for access to counsel—indeed, Sheriff Principal Taylor told the committee that he could not remember turning down an application for counsel—there will be no guarantee of equality of arms in the new system, as the bill stands.
The limit of £150,000 refers to the amount that is pursued, not the amount that is awarded, which will usually be considerably less. Most personal injury cases settle out of court for about 48 per cent of the amount pursued. However, the award for expenses will depend on the settlement, and if that is less than £150,000 the award may be based on the sheriff court level if sanction for counsel is not awarded. Therefore, the winning party may have to pay the additional expense of counsel from the award instead of the bill being picked up by the losing party. The Association of Personal Injury Lawyers suspects that that risk will result in claimants who are pursuing sums of considerably more that £150,000 opting to go to the sheriff court rather than the Court of Session even though they are above the exclusive competence limit.
Sheriff Principal Taylor recommended that the bill be amended to expand the test for granting sanction for counsel to include a general test of reasonableness. Some witnesses, such as the STUC, called for automatic access to counsel in the new personal injury sheriff court. Others, such as Thompsons Solicitors and Clydeside Action on Asbestos, suggested that pursuers in certain types of cases should automatically be entitled to representation by an advocate. I look forward to the committee testing some of those suggestions at stage 2.
Alison McInnes referred to the remitting of cases to the Court of Session. The current test for remitting cases refers to the importance or difficulty of the case, but the bill replaces that with a test requiring the sheriff to request a remit and enables the Court of Session to take account of its
“business and other operational needs”.
As we have heard, Lord Gill stated in evidence that the test of “exceptional circumstances” was too high and he expressed concern that section 88(6) would allow the Court of Session to refuse a remit basically on the ground that it was too busy. He suggested that that would be in breach of the ECHR, and the minister confirmed by letter that the Scottish Government accepted that. I am pleased that that has been accepted. It is disappointing, however, that, yet again, a substantial drafting error has been made in a bill that has been introduced. That suggests a sloppy approach to the drafting of the bill.
There are issues around the judicial review period of three months. It may well be too short, as we heard in evidence from many of those who represent people’s human rights. For example, in cases in which the Aarhus convention applies, it may not give communities long enough to put together their arguments. We probably need to revisit the judicial review limit at stage 2.
17:37
I declare an interest as a former practising member of the Faculty of Advocates and, currently, a non-practising member of the faculty.
As the First Minister said last week, Lord Gill’s aim in proposing the reform is to make justice more accessible to more people and to lower the cost of getting justice. The reforms are intended to make the administration of justice in Scotland more efficient and more accessible to ordinary people at a proportionate cost.
The fundamental principle of the bill is that the right cases will be heard in the right courts. Currently, the choice of court is almost invariably made not by the litigant but by his or her legal adviser. Some cases are routinely taken to the Court of Session, needlessly increasing the legal costs to litigants. The proposed changes will, therefore, bring benefits to litigants.
On delivering reduced costs for litigants, Labour made it plain, when it commissioned the Scottish civil courts review in 2007, that one of the four key issues to be reviewed was the cost of litigation to the parties. The raising of the exclusive competence of the sheriff court is essential if we are to deliver better access to justice. I am glad that the committee acknowledged that, although I accept that there is a variance of opinion on what the level should be.
The cabinet secretary has already discussed the position on sanction for counsel in asbestos cases and other complex personal injury cases. It will be possible to remit complex personal injury cases from the sheriff court to the Court of Session. Sanction for counsel in the sheriff court, although at the discretion of the sheriff, is very likely to be granted in complex cases, especially in cases in which the other side has employed counsel. We will lodge amendments to ensure that the test for remitting cases in which counsel is automatic is not too strict. Although the rules on sanction for counsel are for the Lord President, the Court of Session and the Scottish Civil Justice Council to consider, I make it clear that there is no intention that the test that was suggested by Sheriff Principal Taylor’s review should be applied more stringently.
In relation to workplace injuries, the cabinet secretary has indicated that he is open to further discussion with the STUC on issues of concern to it including the principle that personal injury cases under simple procedure will have specific rules. John Finnie’s proposal may not be competent because health and safety is a reserved matter—we should keep that at the forefront of our minds.
On the concerns about a single appeal sheriff, the Government continues to believe that, given the procedural nature of civil appeals, an appeal sheriff will be suitably qualified to hear the appeal. However, the quorum of the court will be for court rules and the decision on which appeal sheriffs will form the judicial complement of the sheriff appeal court in individual cases will be a matter for the president and vice-president of that court.
What will the role of the sheriff principal be in such cases?
That will be a matter for the president and vice-president of the sheriff appeal court. It may be that, in an individual case, it will be considered that the sheriff principal should sit or it may be decided otherwise.
The committee has asked for further information on the capacity of the courts. Margaret Mitchell raised the spectre of thousands of cases transferring all at once. Cases will not transfer all at once: cases that have started in the Court of Session will stay in the Court of Session. It is new cases that will be raised in the sheriff court.
We have heard about the dramatically falling numbers of civil cases in the sheriff courts. Recently released statistics show a substantial reduction in the number of civil cases being heard at sheriff court level, with a drop of around 8,000 cases between 2011-12 and 2012-13 and a drop of more than 50,000 cases since 2008-09. The transfer of those cases should also be seen in the context of other improvements, such as better and more streamlined processes in court and better case management.
Margaret Mitchell also raised the issue of court closures. I simply reiterate that the closures will result in the redistribution of only 5 per cent of sheriff court business to other nearby courts, with staff and judiciary also transferring. Fluctuating demand can be managed and the Scottish Court Service has stated that the changes will result in more efficient and effective court services.
I will take a little time to respond to some of the points made in the debate. Liam McArthur and Alison McInnes raised the issue of honorary sheriffs. I have written to Liam McArthur, so he knows that we will not abolish honorary sheriffs until alternative arrangements are in place.
The financial memorandum was subject to considerable discussion. The memorandum notes that savings are expected to be generated from efficiencies released. The reforms are about a reorganisation of the existing resources of the courts, as well as doing things in the most efficient way possible.
Although we have included figures in the financial memorandum on the up-front investment required, for example in the Scottish Civil Justice Council, we do not expect significant additional investment to be necessary. The policy on court fees is to move towards full cost recovery over time regardless of the courts reform process. The last round of court fees orders in 2012 included an above-inflation rise with that portion contributing to those up-front costs. The next fees orders are expected to be laid in 2015 and they will be consulted on before being scrutinised by Parliament.
Eric McQueen stated to the Justice Committee that the Scottish Court Service does not expect to see a large overall increase in the total amount of fees recovered for the cost of civil business. Lord Gill said:
“From the work that has been done by the Scottish Court Service and the Scottish Civil Justice Council, I am absolutely satisfied that the reforms can be adequately funded. They are part of the long-term planning of the Scottish Court Service.”—[Official Report, Justice Committee, 22 April 2014; c 4536.]
I will deal with just a couple of the very specific issues that were raised. Malcolm Chisholm made a couple of points. He mentioned that there would be no increase in sitting days, but that is compared with the figure for 2011-12, which was used in the financial memorandum. It is possible not to increase the number of sitting days because the civil case load has decreased since then. The SCS has confirmed that that number of sitting days would be sufficient for the expected level of business. Malcolm Chisholm also wondered how the legal aid costs could fall if sanction for counsel is rarely refused. Sanction for counsel is rarely refused when needed; that position is likely to continue in the future.
John Pentland mentioned that no percentages of cases were considered in the choice of £150,000 as the limit. Lord Gill estimated that that limit would take around two thirds of cases from the general department of the Court of Session and 25 per cent from the commercial courts, so some percentages are available.
Graeme Pearson talked about the need for advocates even if only at the point of settlement rather than the point of proof. However, the Faculty of Advocates and the Association of Personal Injury Lawyers have agreed that there was no evidence that cases are settled earlier in the Court of Session than in the sheriff court. That suggests that an advocate is not essential in that regard.
I ask you to bring your remarks to a close.
I am conscious that it is time to sum up, Presiding Officer. The reforms are about a vision for the future of the courts in Scotland. It is one in which cases will be dealt with expeditiously and money will be saved for litigants, and I hope that the profession will embrace it. I commend the motion to the Parliament.