Judiciary and Courts (Scotland) Bill: Stage 3
The next item of business is the stage 3 proceedings on the Judiciary and Courts (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2, SP bill 6A; the marshalled list of amendments, SP bill 6A-ML; and the groupings that I have agreed. The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon. The period for voting for the first division will be 30 seconds. Thereafter, I will allow a voting time of one minute for the first division after a debate, and 30 seconds for all other divisions.
Section 2—Head of the Scottish Judiciary
The first group is on the Lord President's accountability to ministers and the Parliament. Amendment 18, in the name of Paul Martin, is grouped with amendment 19.
Amendment 18 would entitle the Parliament to request the Lord President to give evidence only on matters relating to the management of court services, which will be transferred to his remit if the bill is successful.
I believe strongly that, in our democratic society, we should protect judicial independence, and I would defend the right of the Lord President to protect his judicial independence from any political interference. However, amendment 18 would allow the Parliament to request the Lord President to give evidence only on matters relating to the management of courts or, in other words, the services that the Scottish Court Service currently provides. If the bill is successful today, the Lord President's job description will change to include the management of court services. As that is a matter of public interest, it is perfectly legitimate for democratically elected representatives of the Parliament to pose questions to the Lord President on how the services are being delivered.
Amendment 19, in the name of my colleague Cathie Craigie, would in effect retain the status quo, in that the minister would remain the titular head of our court services. I believe strongly that Cathie Craigie is right to raise the issue, which she will no doubt develop further.
We seek assurances from the minister on how the Parliament will interact with the Lord President on matters relating to court services.
I move amendment 18.
The Cabinet Secretary for Justice is aware of my concerns regarding the accountability issues that the bill raises, particularly in relation to the management and administration of our court services, which are key functions of government.
The bill will rightly enshrine in legislation the independence of our judiciary and will establish in legislation our Lord President as the head of the judiciary. That is a planned and welcome piece of legislation. However, the cabinet secretary is aware of my concerns about the Scottish Court Service and about the transfer of powers
"for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts"
from the Scottish ministers to the Lord President. My concerns are about accountability and whether it is a good idea to pass responsibility from ministers, who are democratically elected by the people of Scotland, with their ministerial positions endorsed by the Parliament, to unelected judges. Although, of course, it is for the Parliament to decide whether that is a good idea, I look to the cabinet secretary to address my concerns.
I welcome the amendments that the chamber will consider later on responsibility for final decisions on the alteration of court boundaries. I appreciate that the cabinet secretary has listened to what committee members had to say on the matter.
In speaking to amendment 19, I will highlight areas where I foresee difficulties. I would welcome any reassuring words that the cabinet secretary can offer on these concerns. After the bill is enacted, how will questions of policy direction on Scottish courts be taken forward and who will be able to do that? For example, will the cabinet secretary be able to request or introduce an expansion of the successful youth courts initiative in future? The establishment of those courts was driven by ministers in a bid to speed up the youth justice process and allow victims to see justice being done. Having youth courts allows cases to be brought forward quickly, so that they do not drag on.
As we all know, drugs courts have also been a success; again, that initiative was driven by the policy of the previous Administration. Domestic violence courts are another initiative that was driven by politicians, delivered by the Scottish Court Service and presided over by the judiciary. Indeed, there are many other specialist courts that politicians believe would be of benefit to the smooth running of court services.
How can the Government and Parliament engage in the modernisation of our court services in future to ensure that they are responsive to the needs of victims? How can the operation of our court services be accountable to the Parliament? Is it in the interest of the Scottish public to give up the democratic accountability that the Scottish Court Service enjoys at present, through the offices of the Scottish ministers, and hand it over to an unelected person and a non-ministerial body?
Amendment 19 seeks to retain powers with the Scottish ministers in order to deliver an effective and efficient Scottish Court Service. As Paul Martin said, we are seeking to retain the status quo—accountability of ministers to Parliament and to the Scottish public. I lodged amendment 19 for that reason and think that the bill would be improved by its inclusion. I look forward to hearing what the cabinet secretary has to say.
During the committee process, Cathie Craigie canvassed support for the substance of these amendments in her inimitable style.
Albeit that some of Cathie Craigie's arguments have a degree of validity, the amendments are wrong and ill founded in not recognising the differing functions in any democratic state of the judiciary, Government and Parliament. I listened to what Paul Martin said on the independence of the judiciary. There is genuine agreement throughout the chamber that that has to be paramount. However, if the chamber were to agree to the amendments, we would create a situation whereby Scotland's de facto chief judge would be accountable to ministers and the Parliament. That would not be a healthy situation; indeed, it could be a recipe for conflict in the years ahead.
That is not to say that there does not require to be dialogue, where appropriate. At stage 1, the Lord President made it perfectly clear that he would view favourably an invitation to appear before a parliamentary committee when the situation merited it.
Will the member give way?
I will first finish the point.
It is most unlikely that any future Lord President would take a different view from that of Lord Hamilton. I am therefore content that the bill as it stands is sufficient, although I am willing to hear whether Pauline McNeill can persuade me otherwise.
As the member rightly said, the current Lord President has said that he is happy to come before the Scottish Parliament's Justice Committee and report to it. However, how can we ensure that any future Lord President will take the same view? If there is no mechanism to ensure that the Lord President reports to the Parliament, could not a future Lord President rightly say that it is not his job to do so?
I cannot ensure that a future Lord President will not take a different view from Lord Hamilton, but trust must be present in any relationship. Any Lord President who refused to appear before a parliamentary committee when there were reasonable grounds for asking him to do so would be very foolish. I accept that that would be a recipe for conflict, but we must deal with situations as we find them. The present incumbent has given the undertaking to which I referred; I do not think that any future Lord President would take a different view. If that were to happen, it might be necessary to revisit the issue but, for the moment, I am content to deal with situations as they arise.
I accept some of the points that the current Lord President made in evidence to the Justice Committee. How does the member address the points that were made by a past Lord President, who indicated that he would have had difficulty taking on the extra administrative burden that the bill will place on the Lord President? He suggested that that burden might take the Lord President away from the job of judging—the work that people expect him to do, rather than pushing a pen.
Not for the first time, Mrs Craigie makes a valid point. When the matter arose in discussions, I made the point to Lord Rodger that the bill is driven by the judiciary—it is for the judiciary to make it work. If I were not content that that will happen, I would not be supporting the bill today.
Mrs Craigie will recollect that I asked the Lord President on two separate occasions in committee whether he was content that the resources would be in place to ensure that the bill did not detract from his primary function, which is judicial rather than administrative; he assured us that they would. On that basis, I am prepared to allow the bill to be passed. Labour members have advanced valid arguments, but I am convinced that, at the end of the day, there is no merit in the amendments that they have lodged. If we were to agree to them, we would dilute the principle of the bill, which Paul Martin encapsulated in his statement of support for judicial independence.
The amendments go to the heart of what has been a largely consensual debate on the bill. The legislation that we are discussing has its origins in the previous session; the draft judiciary (Scotland) bill that was published in February last year proposed that the Lord President become more actively involved in the management of the Scottish Court Service. Nevertheless, it is important at this final juncture of the Judiciary and Courts (Scotland) Bill's progress to seek assurances from the cabinet secretary on how the Parliament will be able to continue to scrutinise to its satisfaction operational matters in the courts.
The Lord President said that he is willing to appear before the Justice Committee if he is requested to give evidence specifically on the management of the Scottish Court Service. That is welcome and, indeed, necessary to enable members to engage in proper scrutiny of the service's operation, which is their role. The bill places judicial independence in statute, so it would not be right for the Lord President to be compelled to appear before the committee. Amendment 18, in the name of Paul Martin, which would give the Parliament the power to request the Lord President's attendance, states clearly the hope and expectation of the Parliament that not only the current Lord President but his successors will be willing to accept invitations from the Justice Committee for that purpose. At the very least, it is important that we stress the significance of the issue in the chamber today.
Although the bill may promote efficient management of the courts, we seek reassurance that that will not come at the expense of ministers' ability to seek specific developments in the Scottish Court Service—for example, drugs courts or domestic abuse courts. Such concerns drive amendment 19, in the name of Cathie Craigie. We must be reassured that ministers' legitimate policy intentions will not be frustrated by the change for which the bill provides, however desirable it may otherwise be. In his letter to the convener of the Justice Committee, the cabinet secretary emphasised the importance of the framework document, which will define the relationships between the SCS, ministers and Parliament. I understand that he intends to consult the Justice Committee before finalising the document's terms, so he may be able to offer us some comfort in that context. The consultation on the framework document may allow the committee to discuss the issues further.
I hope that the cabinet secretary can reassure us on the issues that have been pursued by Cathie Craigie and Paul Martin through their amendments and that, as a result, it will be possible for us to develop a consensus.
As I am a new member of the Justice Committee, I have not had the benefit of hearing the arguments being developed during stage 2. I must confess, however, that I am attracted by the viewpoint that Bill Aitken has advanced on these matters. Members are, properly, susceptible to arguments concerning the separation of powers. Behind that lies the distinction between the Lord President in his judicial capacity and the Lord President as the chair of the Scottish Court Service.
On amendment 19, there is already provision in sections 64 and 65 for the Scottish Court Service to provide information in pretty much the same terms as those in which Cathie Craigie would wish the Lord President to provide information. That is the right approach, which focuses on the operational requirements of the service rather than on broader issues.
On amendment 18, nobody doubts for a minute that there needs to be a good relationship between the various authorities, with the possibility of dialogue between the judiciary, the legislature and the Executive. The amendments are not necessary, as they contain provisions that exist anyway in effect. In most circumstances, we try to avoid inserting into bills provisions that state the obvious and that do not add anything to the context of the powers available to and duties on individuals and public bodies. With that in mind—and obviously subject to the cabinet secretary's comments—I am minded to oppose amendments 18 and 19.
I thank Paul Martin and Cathie Craigie for their engagement with the Government not just on the issues to which amendments 18 and 19 relate, but on the bill as a whole. I accept the perfectly legitimate points that they raise and I will attempt to provide them with the assurances that they seek.
The two amendments have a common purpose: to further secure accountability and to retain some measure of control over the running of the court system. However, they are unnecessary, as the bill already contains a number of measures that are designed to ensure the accountability of the Scottish Court Service. We also believe that the amendments are misconceived. In its own way, each of them runs the risk of undermining the very principle that the bill sets out to enshrine in law: judicial independence.
Although I understand what Paul Martin is correctly trying to achieve, by making it clear in the bill that Parliament may invite the Lord President to attend, we have heard the Lord President's assurance that he will accept invitations from Parliament on matters that are properly of concern to it. Amendment 18 could do more harm than good. Parliament already has the power to invite the Lord President and, indeed, anyone else to give evidence. It would be wrong to suggest that that depends on statutory provision. Such a provision would cut across Parliament's inherent powers to regulate its own procedure, and it could undermine its standing orders. Rule 2.6 states:
"The Parliament may … invite any person … to attend its proceedings for the purpose of giving evidence; or … to produce documents".
Rule 12.4 provides the same for committees. Apart from its effect on standing orders, amendment 18 would call into question whether the Parliament may invite any person if there is not an express power so to do. It would also call into question whether a committee could invite the Lord President to attend.
Cathie Craigie has understandably expressed concern about the changes that the bill introduces, but her proposals in amendment 19 would seriously undermine the principles of the separation of powers and judicial independence, which are fundamental themes in the bill. The amendment also undermines the coherence and strength of the arrangements for a judicially managed system that the bill puts in place. I firmly believe that the court system will be improved by establishing in the Lord President a single point of headship for the judiciary and the management of the system.
We have set out in section 1 our commitment to the independence of the judiciary, which I think is welcomed throughout the Parliament. We have set out a structure that gives the judiciary responsibilities for running the system, supported by a judicially governed Scottish Court Service. Having established the institutional independence of the judiciary, it would be fundamentally inconsistent for us to give ministers power to issue binding guidance to the Lord President about how he should run the business of the courts. It is constitutionally wrong for a minister to tell judges how to run their courts. The Lord President would be in an untenable position. He would have responsibility for securing the efficient disposal of business, yet he would have to follow guidance from ministers. That is a recipe for confusion and uncertainty, and it could undermine the whole point of having a single person with overall responsibility and power of action. There is already a power in section 65 for ministers to issue guidance to the Scottish Court Service about the carrying out of its functions. Ministers have scope to influence activities, through the process of approving the service's corporate plan, and I believe that that strikes the right balance.
If, for example, youth courts, which are being piloted, were not in place, would the bill allow the minister to drive that initiative forward?
The position at present is that such an initiative could not be driven forward if the sheriffs principal and the Lord President were unable to deliver it. This is ultimately about respect for the separation of powers, which Robert Brown and Bill Aitken mentioned, but I will address some of the issues that Paul Martin and others have raised about how we can exercise influence.
Pauline McNeill raised legitimate points about how members interact with the judiciary and what level of accountability and response can be expected. Ministers will, as at present, be able to propose that the courts should operate in particular ways. If, for example, we saw merit in a roll-out of specialist domestic abuse courts, it would be for the Lord President and sheriffs principal to decide whether to implement the proposals, as it is at present. The current situation is neither enhanced nor impacted on negatively.
The bill sets out a clearer duty on the judicially led Scottish Court Service to consider the proposals within a clearer planning framework. Under section 62, the SCS must submit a corporate plan to ministers. As part of considering that corporate plan, ministers will consider whether the SCS's plans are aligned with the Government's priorities and may seek change. That applies now and in the future. Ministers may, at any time, give guidance to which the SCS must have regard. The Lord President, as chair of the SCS and head of the judiciary, will have to consider the resource management and judicial deployment consequences of proposals from ministers. A better structure is therefore in place to ensure that ministers and the judiciary have an informed negotiation about how to implement changes in Scotland's court system. In response to the point that Ms Craigie raised, ministers can set directions. Currently, if the Lord President or the sheriffs principal felt that those were impractical or impossible, they would have to so advise.
Amendment 19 would require the Lord President to provide ministers with any information for which they asked about the arrangements that he was making to secure the efficient disposal of business. I do not believe that that is right or necessary. It would interfere with the Lord President's independence. I outlined many ways of obtaining information in my letter of 17 September to Bill Aitken. In section 64, there is already a requirement on the SCS to provide information to ministers. The chief executive of the SCS can be called to appear before the Parliament, and the Lord President has said that he would accept an invitation to attend if there were significant issues.
I intend to produce a framework document that will define the relationships between the Scottish Court Service, ministers and Parliament, which should also provide reassurance. It will deal with the provision of information, in particular in response to a request from members—an issue which Pauline McNeill correctly and understandably raised.
I acknowledge that members have a legitimate interest in being able to obtain information about the running of the courts and I hope that I have allayed fears that that will not be the case if the bill is passed. The Lord President has made it clear that he sees the bill as an important constitutional measure. That he will not be willing to play his part in the new arrangements is unthinkable. He will, of course, undertake to participate.
I therefore urge Paul Martin and Cathie Craigie not to press the amendments. Given the different circumstances that may arise, it is difficult for any legislation at any stage to provide absolute assurances, but I think that our proposals provide a correct balance. The separation of powers will be ensured in respect of the Lord President, and he will be in control of the secretariat that is necessary to ensure the separation of powers, but the points that Paul Martin and Cathie Craigie correctly make about interaction with elected members are vital, not only for members but for their communities. We believe that that aspect will be properly focused on, dealt with and, perhaps for the first time, specified in a memorandum of understanding that will allow everybody to know who is accountable for what and what is to be expected by each party in these circumstances.
I ask Paul Martin to wind up and to either press or withdraw amendment 18.
I commend the minister for the co-operative fashion in which he has followed up the issues.
I will raise two important issues. The first relates to Robert Brown's point about whether it is necessary for the provision to be placed in the bill. It is not unprecedented for us to state the obvious in a bill. There are references in the Sexual Offences (Scotland) Bill, which we debated recently, to the role of the Lord Advocate in the dispensation of justice. Arguably, the obvious was stated in that legislation, so it would not be unprecedented for us to include in this bill the wording that has been proposed.
Secondly, although it is important to recognise that we welcome the co-operative exchanges that the Parliament has had with the current Lord President, the issue is not with the current holder of that post. The current Lord President will not always be Lord President. It is important that any legislation that the Parliament passes takes account of the distant future.
However, I intend not to press amendment 18, given the minister's assurance that he will come forward with a framework document—or historic concordat or whatever he wants to call it—that will ensure both that the Lord President is made accountable and that the issues that members raise in Parliament are taken into consideration.
Amendment 18, by agreement, withdrawn.
After section 3
Amendment 19 not moved.
Section 11—Recommendations of the Board
Group 2 is on the Judicial Appointments Board for Scotland—recommendations and ranking. Amendment 20, in the name of Bill Aitken, is grouped with amendments 21 and 22.
When the Judicial Appointments Board was established with a fanfare of trumpets some years ago, it was set up on the basis that the new appointments system would be, among other things, transparent. Indeed, I can recollect the then Minister for Justice comparing and contrasting the new system with that which had existed previously. Many of his comments about the previous arrangements were perfectly apposite. The previous set-up, whereby judicial appointments were made by the Lord Advocate after consultations and takings of soundings, were in effect secret, nepotistic and highly undemocratic. It ensured that judicial appointments were restricted to the few. The former system had everything wrong with it, apart from the fact that it seemed to have worked for a couple of hundred years. However, sceptic though I am, I do not suggest any return to the previous approach.
Amendments 20 to 22 seek to highlight a situation in which there is an absence of transparency. As members of the Justice Committee are aware from the committee's stage 2 consideration of the bill, the Judicial Appointments Board interviews candidates, decides whether the candidates are appropriate for selection and, if they are appropriate, places them on a list from which the candidates will be appointed to the judiciary in due course and in no particular order. By contrast, anyone who is interviewed by the civil service, a local authority or a private company with the aim of seeking promotion or inclusion on a list to undertake a higher-graded post is notified of his or her success and given some indication of when they are likely to obtain that post.
Although I accept that there can be difficulties with timing, amendment 20 seeks to obviate the problem that can arise when two or more individuals make successful applications. For example, if there are four vacancies—as, coincidentally, is currently the case in the supreme courts—those who have been interviewed should be told not only whether they have been recommended for appointment but also any ranking that they have been given. That would not breach confidentiality and would give the applicants some indication of when they would be likely to be appointed to the bench.
The existing uncertainty is not only unsatisfactory but unfair on applicants and, in some instances, prevents them from making the usual mid-term plans that we are all required to make in our everyday lives. More important, such uncertainty can sometimes cause real problems. The classic example is where an applicant is a senior counsel who is a planning specialist who has been asked to act for an individual or company in a planning inquiry that, as we all know, could last for several months. Clearly, if the applicant was aware that an early elevation to the bench was likely, by studying the movements within the senate it would be possible for the applicant to anticipate what might happen so that an informed decision could be taken. Basically, amendment 20 would deal with that aspect.
Amendment 21 would simply ensure total independence. Again, I use the example of a situation in which a number of successful applications are made. Without amendment 21, it could be open to ministers to arrange the order of appointments to suit themselves. I am certain that that would not happen with this minister; I have every confidence in Mr MacAskill—under this heading, at any rate. However, amendment 21 would offer an important constitutional safeguard.
Amendment 22 would simply enable applicants to know where they were with regard to any potential appointment.
The principal argument against amendments 20, 21 and 22 would be that circumstances could change. I accept that circumstances could arise whereby the appropriate cabinet secretary or minister might wish to break with the ranking order as laid down by the Judicial Appointments Board. However, I am confident that that would not be done without good reason. The cabinet secretary could make that reason known, and I am sure that that would receive universal support, because we all accept that such circumstances could arise.
The three amendments seek to build on, rather than detract from, the role of the Judicial Appointments Board. Transparency was one of the principal reasons for the foundation of the board. As the bill stands, there is an absence of transparency under several headings. Amendments 20, 21 and 22 seek to improve transparency.
I move amendment 20.
We are short of time, so I ask Richard Baker to be brief.
We are happy to support Bill Aitken's amendments 20, 21 and 22, which we regard as sensible and beneficial in making the appointments process fair to candidates. It is fair that candidates should know where they are ranked on a list of successful applicants. As Bill Aitken says, that could make a material difference to whether successful applicants who are waiting to take up a position take on other commitments in the meantime.
The amendments seem to me to aid transparency and accountability in the process, which is the drive behind the proposed changes. We therefore support amendments 20, 21 and 22.
I ask Robert Brown to be equally brief.
Again, I have no knowledge of the earlier discussion in committee, but I would like to make a couple of points. There is some merit in Bill Aitken's proposals, and I would like to hear a bit more clarity from the cabinet secretary. I would like him to expand on what he said at stage 2, when he talked about normally following the order of appointments as recommended by the Judicial Appointments Board, unless there were a reason to depart from it. That reason could be relatively incidental—for example, a health reason. Alternatively, we could adopt the approach that we have adopted for many public appointments—I think that it is recommended in our procedures for public appointments—in which ministers have choice and discretion. It is important that we get the cabinet secretary's views on the record.
I sympathise with Bill Aitken's view that an individual who has successfully passed a recruitment round managed by the Judicial Appointments Board should know that they are likely to get a commission. I agree. Not only should they know that they are likely to get a commission, but they should be given a general indication of where they are on the list. That is what happens now, and it will continue to happen once the bill is enacted. However, amendments 20 and 21 seek to give a responsibility to the Judicial Appointments Board that would not be appropriate.
The board's remit is to provide the First Minister with a list of candidates who have been recommended for judicial appointment, and the final decision then rests with the Scottish ministers. Ministers retain statutory responsibility for judicial appointments, and it is therefore for ministers, not the board, to inform successful candidates that they have been selected for appointment. If appropriate, Her Majesty would then be invited to appoint them to judicial office.
Amendment 22 cuts across the appointments process and attempts to address an issue that is, and should remain, part of the confidential consideration that the Judicial Appointments Board gives to each candidate before recommending candidates for appointment. That recommendation is then approved by ministers.
Amendment 21 deals with the order of appointments. I assure members that, where a ranked list of candidates is the appropriate vehicle, successful candidates are appointed in the order in which they appear on the list—unless, of course, there is a reason to depart from the order. As Robert Brown suggests, there could be a number of reasons for departing from the order. Bill Aitken's amendment addresses some of those reasons, but there are other situations that he has not covered. A list can have currency for some months. What if, for example, an accusation or complaint were to be made against an individual whose name was on the list? In such circumstances, it would be right and proper for ministers to await the outcome of any investigation before moving either to appoint the individual concerned or to seek to remove their name from the list entirely. To fail to do that would be negligent and could cause problems.
I know that there is a perception in some quarters that, for some reason, ministers might seek to engineer appointments to the detriment of the individual concerned. However, I assure members that that will not happen on my watch, and I do not believe that it will happen on any minister's watch. Nevertheless, in the unlikely event that, in the future, there were to be any cause for concern, it should be noted that the members of the Judicial Appointments Board for Scotland are well aware of the rankings that they have made and are in a position to monitor the appointments as they are made in years to come. I am sure that, if the board members had any reason to suspect me, other ministers or anybody else of behaving in an unacceptable manner, they would soon make their views known.
The bill, as drafted, allows for an appropriate level of flexibility in the appointment process. The circumstances that Bill Aitken and I have touched on are simply exceptional ones that could arise. It would be unhelpful to impose an artificial restraint such as is proposed for eventualities that we hope may never occur but which just might. I therefore invite Bill Aitken to withdraw amendment 20.
I will deal briefly with Mr MacAskill's point regarding the necessity for change. I fully accept that, were one of the successful applicants to be the subject of an inquiry, ministers would inevitably be required to address the situation. I would fully support any cabinet secretary who went down that route. However, as I said, the bill is designed to build on the transparency of the system and changes are necessary. I am certain that Mr MacAskill would never do anything underhand on his watch. Nevertheless, my amendments would safeguard the position for the future. I intend to press amendment 20.
The question is, that amendment 20 be agreed to. Are we agreed?
No.
There will be a division. As it is the first division of the afternoon, I will suspend the meeting for five minutes. The division will take us beyond the time limit for groups 1 to 4. I therefore exercise my power under rule 9.8.4A of the standing orders to extend the time limit to allow members with a right to speak on groups 3 and 4 to do so.
Meeting suspended.
On resuming—
We move to the division on amendment 20.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Ahmad, Bashir (Glasgow) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 56, Against 62, Abstentions 0.
Amendment 20 disagreed to.
Amendment 21 moved—[Bill Aitken].
The question is, that amendment 21 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Paisley South) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Ahmad, Bashir (Glasgow) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Brown, Robert (Glasgow) (LD)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hume, Jim (South of Scotland) (LD)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McArthur, Liam (Orkney) (LD)
McInnes, Alison (North East Scotland) (LD)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
O'Donnell, Hugh (Central Scotland) (LD)
Paterson, Gil (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Tolson, Jim (Dunfermline West) (LD)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 56, Against 62, Abstentions 0.
Amendment 21 disagreed to.
Amendment 22 not moved.
Section 38—Consideration of fitness for, and removal from, shrieval office
Group 3 is on removal from shrieval office—procedure. Amendment 2, in the name of the minister, is the only amendment in the group.
Section 38 inserts in the Sheriff Courts (Scotland) Act 1971 new section 12E, which requires that an order be laid in Parliament by the First Minister before a sheriff principal or sheriff can be removed from office following a tribunal's report that he or she is unfit to hold office. [Interruption.]
Order. I am sorry, minister, but there are far too many conversations going on. Can we have a level of silence, please?
New section 12E in the 1971 act provides for a 40-day rule to apply to such an instrument, rather than the 21-day rule that applies to other negative instruments. Amendment 2 is a purely technical amendment that makes it clear that the standard procedure for negative instruments is modified to properly reflect that, thereby removing any potential for ambiguity.
I move amendment 2.
Amendment 2 agreed to.
Section 39—Meaning of "judicial office holder"
Group 4 is on the meaning of "judicial office holder". Amendment 3, in the name of the minister, is the only amendment in the group.
Section 2 unifies the judiciary under the Lord President as head of the Scottish judiciary. It places a range of responsibilities on the Lord President, including responsibility for
"the efficient disposal of business in the Scottish courts";
responsibility for representing the views of judicial office holders; responsibility for making arrangements for
"the welfare, training and guidance of judicial office holders";
and responsibility for making arrangements for a conduct scheme for the judiciary.
Section 2 defines the Scottish courts and section 39 defines the judicial office holders for those purposes. Section 2 also provides that the Scottish ministers may by order add to the list of courts over which the Lord President has responsibility, after first consulting him. Amendment 3 addresses the other side of the coin by giving the Scottish ministers the power to add to the list of judicial office holders in section 39. It seeks to ensure that when courts are added to the Lord President's remit, the members of those courts also fall under his stewardship.
I move amendment 3.
Amendment 3 agreed to.
Section 47—Alteration of boundaries of sheriffdoms
Group 5 is on boundaries, locations and justice of the peace court establishment and constitution. Amendment 4, in the name of the minister, is grouped with amendments 5 to 17.
The bill as introduced gave the Lord President responsibility for promoting statutory instruments about the alteration of boundaries of sheriffdoms, sheriff court districts, places where sheriff courts are held and the establishment of justice of the peace courts. That had a certain neatness, as such matters relate to the Lord President's decisions about the deployment of the judiciary.
However, during the bill's passage, I listened to members of various parties who felt that ministers should retain a role in decisions about where courts are located that are likely to be matters of some local political controversy. The point was made that communities are often concerned if, for example, a proposal is made to close or relocate a local court, and that MSPs want to be able to debate the case for closure or relocation with an elected representative. Members felt that such potentially contentious decisions should be the subject of a decision by ministers and Parliament. I found those arguments persuasive, so I have lodged amendments to provide that statutory instruments on sheriffdom boundaries and court locations should be promoted by ministers to Parliament and should be capable of annulment by Parliament.
I welcome the cabinet secretary's change of mind in that respect. In future, will he be open to persuasion by the Justice Committee to proceed along more sensible lines?
I am always happy to listen to the committee and its convener. To be fair, such matters were also raised by members who are not members of the committee—in particular, Ms McNeill. I pay tribute to Bill Aitken and to the other members who were correct to raise the issue.
As a matter of practice, I would normally expect proposals for changes in court locations or sheriffdom boundaries to come from the Scottish Court Service and the Lord President, after consultation with the people who would be affected, as those are, in the first instance, operational matters for the SCS and the Lord President to reach a view on.
Amendments 4 to 17 provide that ministers and Parliament could not, at their own hand, change sheriffdom boundaries or court locations without the consent of the Lord President and the SCS. That must be right, as such decisions affect the Lord President's responsibilities for deployment of the judiciary and the efficient disposal of business by the courts.
The combined effect of amendments 4 to 17 is that ministers and Parliament will have an effective say over whether proposals that have a potentially significant impact on communities, such as court closure proposals, should go ahead, and that they will require to be consulted about any such proposals.
I move amendment 4.
I have waited a long time for a tribute from Kenny MacAskill, so I accept it in the spirit in which it was given. In all fairness, I think that the Cabinet Secretary for Justice genuinely listened to the arguments of Justice Committee members, and me, on concerns about the transfer of functions from the Scottish ministers and the Scottish Government to Scottish judges. The committee made strong representations at stage 2, and I am pleased that the cabinet secretary has agreed that the right place for final decisions about sheriff court boundaries is the Parliament, with the Justice Committee scrutinising the process.
Sheriff court boundaries are a sensitive issue for us all. It is not that I think that we are planning to change them—let us hope that that does not happen in the foreseeable future. If it did, the issue would become very sensitive for elected members in their representation of their communities. It would be right for judges and sheriffs to have a say in the determination of boundaries for our courts but, ultimately, the final decision should remain with ministers and elected members. I very much welcome the change of heart.
I, too, welcome the change of heart. The minister has produced an elegant solution to an issue that was pushed by, among others, my colleague Margaret Smith in committee. Disentangling the issues around sheriff court boundaries and locations from other issues around operation or policy is the right approach. I am pleased that the cabinet secretary has listened to the Justice Committee, and has followed its view and shown the worth of its work.
I welcome the consensus among members. These matters have often given rise to significant differences. For example, a campaign relating to the potential closure of Peebles sheriff court was led in past sessions of the Parliament by Christine Grahame. Pauline McNeill and Robert Brown are correct to say that such issues cause considerable controversy. I am grateful for the kind words from members. We have reached a solution that is appropriate and which will strike the correct balance. At the end of the day, the Lord President and the SCS have to do what is appropriate. Ultimately, though, the decision has to be capable of being challenged by those who are elected to represent their communities.
Amendment 4 agreed to.
Amendments 5 and 6 moved—[Kenny MacAskill]—and agreed to.
Section 48—Sheriff court districts and places where sheriff courts are to be held
Amendments 7 to 9 moved—[Kenny MacAskill]—and agreed to.
Section 54—Establishment, constitution etc
Amendments 10 to 15 moved—[Kenny MacAskill]—and agreed to.
Schedule 1
The Judicial Appointments Board for Scotland
Group 6 is on the Judicial Appointments Board, removal of members. Amendment 23, in the name of Bill Aitken, is the only amendment in the group.
This matter is fairly simple and straightforward, but nonetheless it is one to which we should attach some importance. Amendment 23 seeks that, in the highly unusual situation whereby someone is removed from the Judicial Appointments Board as a result of misconduct or incompetence, that person has the opportunity to speak in their defence. As it stands, the person can be removed without being able to make any representations or denials of the allegations. That is surely contrary to natural justice. It is highly unlikely that the situation would ever arise, but sometimes we have to legislate for the unusual if not the unique.
A question of fairness and justice is involved. I very much hope that the cabinet secretary can be persuaded to accept amendment 23, which is worthy of support. Of course, if he is not persuaded, I would say that somewhere down the road, if a situation arises in which someone is removed without being granted rights of audience and a hearing, a compliance issue could arise, which might be pursued by that person in another place.
I move amendment 23.
I support amendment 23. It is a matter of natural justice, and it concerns something that ought specifically to be stated. Grounds are given in schedule 1 for the removal of members. For example, a member can be removed if they have
"failed without reasonable excuse to discharge"
their functions, or if they have
"been convicted of any offence".
Does that mean a road traffic offence or something else? The seriousness of the offence must be made clear. Another ground for removal is that the member "has become insolvent"; that is a matter of fact, so no issue arises there. The final ground for removal is that the member
"is otherwise unfit to be a member or unable for any reason to discharge the functions of a member."
Removal cannot occur without engagement between the person concerned and those who are responsible for their removal, so it is entirely appropriate that that should be on the face of the bill. I would be surprised if employment legislation did not give specific rights to people where such circumstances arise. It is important that that should also be the case for an important body such as the Judicial Appointments Board.
In the interests of natural justice, we, too, support Bill Aitken's amendment 23. The evidence that we received at stage 1 was powerful in its support of the issue that is raised in amendment 23.
I understand members' genuine concerns, but they are based on a misconception. The bill's provisions on the removal of members are enabling. They set out the circumstances in which the Lord President or, as the case might be, the Scottish ministers might consider whether a member should be removed from office. They do not, and should not, prescribe the process to be undertaken.
I understand and sympathise with Bill Aitken's concern that the process should be fair, and that it should accord with the principles of natural justice, as Robert Brown commented. However, amendment 23 is completely unnecessary. It is impossible to conceive of a situation in which the Lord President or the Scottish ministers, in contemplating a situation as serious as removing a member from the board, would do so without a proper investigation and discussion with the member concerned.
Amendment 23 would add a rigidity that could have the effect of interfering with the efficient working of the board. If, for example, a member of the board were to disappear, fall into a coma or be so seriously ill that any approach would be entirely inappropriate, there would be no way to move forward. The board might then have to operate with one member short. That would not be a satisfactory result. Amendment 23 applies only to the removal of members of the Judicial Appointments Board, although the bill also provides for the removal of the chair of that board and of members of the Scottish Court Service. An express provision in schedule 1 would create doubt about whether members had a right to be heard before being removed.
With that clarification given and the assurance that I hope to provide, I urge Bill Aitken to withdraw amendment 23. I recognise his sincerity and the genuine basis of his amendment, but he has fundamentally misconceived the situation.
Although I am intrigued by the thought of the comatose member of the Judicial Appointments Board, I am not persuaded by the cabinet secretary's arguments. Similar arguments could be used on practically every issue, such as cases of employment law or when someone faces dismissal from an appointment. I press amendment 23.
The question is, that amendment 23 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Foulkes, George (Lothians) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Annabel (West of Scotland) (Con)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Hume, Jim (South of Scotland) (LD)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Roxburgh and Berwickshire) (Con)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McArthur, Liam (Orkney) (LD)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mulligan, Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
O'Donnell, Hugh (Central Scotland) (LD)
Oldfather, Irene (Cunninghame South) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stewart, David (Highlands and Islands) (Lab)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Tolson, Jim (Dunfermline West) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)
Ahmad, Bashir (Glasgow) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Russell, Michael (South of Scotland) (SNP)
Salmond, Alex (Gordon) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 71, Against 46, Abstentions 0.
Amendment 23 agreed to.
Schedule 3
The Scottish Court Service
Group 7 is on Scottish Court Service membership. Amendment 1, in the name of Pauline McNeill, is the only amendment in the group.
Amendment 1 is, in essence, about ensuring that sheriffs who work part time in our courts have representation on the Scottish Court Service board. I have been asked to raise the issue at stage 3 and I am happy to do so.
Part-time sheriffs have a client base in private practice and they think that they should also have a voice in the system. Some are company directors; indeed, the fact that the president of the Part-time Sheriffs Association, John McCormick, is a solicitor advocate with an MBA demonstrates that sheriffs have many different skills.
Every other branch of the judiciary is represented on the board, including full-time sheriffs and justices of the peace. The Part-time Sheriffs Association is represented on the Judicial Council for Scotland, so why is it not to be represented on the Scottish Court Service board?
There are 80 part-time sheriffs in Scotland and they have in-depth experience of the Scottish courts. In fact, there are 20 to 25 part-time sheriffs sitting in courts on any one day. They have the same powers as full-time sheriffs, but they argue that they would bring a different perspective to the administration of Scottish courts and the administration of justice, because, given that they are part-time, they practise outwith the court system as well as make judicial decisions. They believe that they would bring a distinct perspective to the management of the Scottish Court Service, which might be lost if they are not given a specific place.
If part-time sheriffs are not to be represented separately, why are JPs, who are also judges, represented separately on the board?
It seems odd for the cabinet secretary to ignore the views of part-time sheriffs. I seek an explanation as to why the cabinet secretary does not think that part-time sheriffs can bring a different perspective to bear in the running of our court services. Given that part-time sheriffs were not given the opportunity to give evidence to the Justice Committee, I felt it appropriate to air the issue at stage 3, so that we can hear an explanation from the cabinet secretary.
The Part-time Sheriffs Association asked for a meeting with the chief executive of the Scottish Court Service, but it has not managed to secure one yet. I hope that the cabinet secretary will consider the importance of the fact that the association will not be able to meet the Scottish Court Service until after the bill has been passed, as I hope it will be today.
If the view is that part-time sheriffs do not need to be represented separately—I am pretty sure that the cabinet secretary will say that, because they fulfil the same functions as full-time sheriffs, they do not need to be represented separately—the right thing for him to do would be to sit down with them and talk them through that view.
I raise the issue because part-time sheriffs form an important branch of the judiciary and it is wrong to exclude them from the process. Even at stage 3, we should at least get an explanation as to why the cabinet secretary has not included them on the Scottish Court Service board. If we get an understanding of how he reached his conclusion, the process will be all the better for it.
I move amendment 1.
Pauline McNeill has raised the distinct role and experience of part-time sheriffs, and that role and experience are driving their concern about not being represented on the board of the Scottish Court Service and not having had a dialogue with the Scottish Court Service on the matter.
On the issue of consultation, I hope that the cabinet secretary will agree that if part-time sheriffs are not to be represented on the board, there should have been dialogue with them not only about that but more widely to ensure that their views were heard on important developments in the SCS. Will the cabinet secretary assure us that they will be consulted properly on such issues in future?
I thank Pauline McNeill for the manner in which she has spoken to her amendment and for giving us prior notification of it. To some extent, she answered the questions that she raised. However, I put it on record that we as a Government recognise the important role that part-time sheriffs play. I have many friends who are part-time sheriffs, as, no doubt, does Pauline McNeill, so I do not underestimate their importance, and there is no suggestion that they are being denigrated in any way.
The association's failure to have a meeting with the Scottish Court Service is regrettable, but I give members an undertaking that Eleanor Emberson will seek to meet it. I understand that there was simply a diary problem. There is certainly no suggestion that the association's position is not recognised or that part-time sheriffs are not to be treated with the dignity to which they are entitled because of the office that they hold. I assure Pauline McNeill and all members that the situation will be remedied and rectified.
The position regarding justices of the peace is that they are in a different sector, to an extent—they operate in a different court—and it is important that they should be on the SCS board.
The objective of the proposed membership is to ensure that the Scottish Court Service has the necessary balance of experience, expertise and independence to secure the effective administration of the courts. The amendment would add a part-time sheriff to the proposed membership, but I do not accept that that is necessary or appropriate.
Paragraph 2 of schedule 3 provides that the Scottish Court Service shall have 13 members, a narrow majority of seven of whom shall be judicial members. I have strong reservations about increasing the judicial majority in the service, as a balance is needed from strong independent voices, for the service's good governance. The constitution of the Scottish Court Service as proposed in the bill was considered carefully in conjunction with the judiciary and is right.
It is important to add that members will be there not to represent interest groups, but to bring their experience to running the Court Service. Members will not represent the busiest court in Europe—we have that in Glasgow—or a sheriffdom, for example. They will bring their skills and talents to the job.
The Scottish Court Service's proposed membership includes two permanent sheriffs and a sheriff principal, who will bring significant judicial experience to the table. It is unclear what perspective a part-time sheriff could add, although I do not seek in any way to undermine the important contribution that part-time sheriffs make.
Anyone who holds office as a part-time or full-time sheriff may of course be considered for appointment as a solicitor or advocate member of the Scottish Court Service.
I urge Pauline McNeill to withdraw amendment 1.
I will not press the amendment, although I am pleased that I have had the opportunity to air the issue. I do not argue that part-time sheriffs do a different job, but they have a different perspective, which would be beneficial. I accept and welcome the cabinet secretary's undertaking that a meeting will occur. That is important at the end of the bill process, because all parts of the judiciary should at least be fully on board—as they will be—with the changes. I felt that part-time sheriffs were a missing link and I wanted to ensure that everyone felt that their views were heard.
Amendment 1, by agreement, withdrawn.
Schedule 5
Consequential amendments and repeals
Amendments 16 and 17 moved—[Kenny MacAskill]—and agreed to.