Chamber and committees

I do not think that there is a need. From my recollection, the divorce laws in Scotland are quite different from those in England and Wales. If I am remembering correctly, the issue in England was that there was quite a long time to wait if one partner did not agree to a divorce. I think that it was five years—my officials can correct me if I am wrong—whereas in Scotland it is two years. We do not have plans to do anything similar, because I do not think that there is the necessity for it in Scotland.

Scotland did not vote for Brexit. It is going to be very difficult in a whole host of areas—I will stick to my own brief and not rehearse all of them now—where what we are going to end up with is far shy of the arrangements that we had previously.

The co-operation on civil justice that exists among the members of the European Union is obviously not there for us now that Brexit has gone through, so we are in a bit of uncharted territory. I will ask Neil Rennick to come in to give more background, because it is quite complicated.

As the committee might be aware, previously we had the Brussels 1a and Brussels 2a regulations; we also had the Lugano convention. We are not party to any of those anymore, which means that there is quite an issue with regard to co-operation on a number of civil justice issues across borders. That is going to make things a lot more complicated, and I think that it is going to slow things down.

On family law matters, we still have the Hague convention, and that gives us something of a fallback. However, for some civil and commercial law issues, we do not have that fallback, so the best option is for us to get back into the Lugano convention. I think that that will be the best way to protect the interests of Scottish businesses and citizens, although that protection will not be as good as it was before. That is where we are.

The European Commission has advised that the EU should not let the UK be a party to the Lugano convention; however, the EU is not the decision maker—the nation states in the European Council will make that decision. Some countries—France, in particular—have said that they are not a fan of the idea and do not want the UK to have membership, but other countries are saying that they are okay with it.

Neil Rennick can add more detail about where we are for those who have a civil law issue right now, when we are not covered.

You are right—it does seem that that work was quite a long time ago. For the benefit of the newer members, I point out that I was a minister in the justice portfolio for the last three years of the previous session of Parliament, and have been working on reform of legal aid and legal regulations for quite a few years.

As the committee will probably understand, there is quite a lot to work through. We are trying to take that at the right pace and to build consensus, because some of the proposed changes are really quite broad and would have quite a widespread impact on the sector. The right way to go about all this—I try to work in this way in general—is to try to build consensus, but that can sometimes take quite a bit of time.

I appreciate that that is not always what people want to hear. When people see that there is a need, as Pam Duncan-Glancy has outlined very well, they want to move forward to address the issue and do something, so I apologise for the fact that the work is going quite slowly.

We are now working towards legislation on legal aid, which would give us the ability to target support in ways that we have perhaps not previously been able to do. I cannot give you a timeframe for when we will publish a bill, because it is not up to me, but we are certainly working towards doing something in the current session of Parliament.

When it comes to the number of cases, the answer is that we do not know. We think that, in particular, fewer family cases have been started in court. It may be, as you have said, that those cases will come through in future but, at this point, we do not know.

On virtual business, the picture is mixed. There was a lot of positivity about remote hearings for procedural matters in particular. That positivity was right across the board, I think—civil and criminal. There has been quite a lot of engagement, and I may ask Denise Swanson or Neil Rennick to speak about that. A number of surveys have been done by the Law Society of Scotland, I think, and others; I think that the Faculty of Advocates has done some engagement with its members on what they think. The Lord President has suggested that remote hearings should certainly feature in the future in some form or other.

Adapting to Covid has presented us with opportunities. The ability to change things has been very beneficial in some cases. Previously, civil business was literally pinned to the walls of the court. That was how things used to be done. Obviously, during Covid, nobody was going into court, so the business was published online. Most people would say that such changes are more efficient and allow us to get business done.

In the criminal and the civil system, we need to look at which of those changes—what uses of technology—are working and improving the system, and at what we should and should not retain. Obviously, we want to make sure that we maintain access to justice. We do not want participants—for example, complainers—to feel that they are not able to present their evidence in the best way. We have definitely got to get that balance. One of the officials may be able to talk a little more about the research that has been done.

That is an issue—absolutely. Let us take the example of family court. If you were fleeing domestic abuse and you were not living at home, you might not have your phone and you would not have an internet connection, so you would not be in a position to sit down in front of a computer and calmly access and take part in your court proceedings. Anecdotally, we have heard about issues in that regard, so there is an option to use the telephone instead. It was not expected that everybody would have a broadband connection. Consideration was definitely given to the fact that not everybody is able to use technology to interact. As we discussed earlier, as we move forward, we want to ensure that we look at that. We are not suggesting that we will move everything to an online platform, because that would not be appropriate. However, you raise a good point.

We recently established a cross-justice working group on race data and evidence, which is working to improve the collection and reporting of race data and evidence in the justice system. I will ask Neil Rennick to give the committee a bit more background on that.

I have certainly heard that anecdotally, but I do not think that we have any research findings on people’s experience of remote hearings. As has been covered, we moved online in a number of areas, particularly in civil justice, in order to keep that business going. I think that most people would say that, rather than waiting a year for the outcome in a family court case hearing, they would prefer to get that business through court so that the sheriff can decide what will happen on their family issues.

I completely accept that, for some people, a remote hearing would not have felt the same as sitting in a room and being able to interact with the sheriff. However, other people might have preferred it. There are some people who are in a domestic abuse situation who find it extremely difficult to sit across the table from the person they consider to be their abuser. I think that remote hearings might have been an improvement for people in that position.

Therefore, I think that it is a mixed picture, but I take your point.

That is a very good question. Obviously, we are looking at reforming legal aid. One of the advantages of the reform process is that it could give us the ability to direct legal aid to groups that might face barriers in accessing it.

I am not sure whether the officials can fill us in on any research that has been done on that. Do we have any statistics?

Thank you, convener, and thank you to committee members for inviting us both to speak about our priorities for Scotland’s civil justice system.

Many of our daily interactions and important milestones in life are governed by civil law, whether that is getting married and having children, buying a house, entering into a contract when ordering goods or services, taking out a loan or using social media, to name only a few examples. When things go wrong, we are likely to come into some degree of contact with the civil justice system.

I will give some figures to set out the context. In 2019-20, the proportion of adults who were victims of crime was 11.9 per cent, which is down from 20 per cent 10 years before. However, the Scottish crime and justice survey shows that nearly three in 10 adults—that is 28 per cent—were estimated to have experienced at least one civil law problem during the previous three years. Evidence tells us that people with certain characteristics, such as those who are economically disadvantaged, are more likely to experience civil justice issues and to have to rely on the civil justice system.

Over the past 18 months, our civil courts and tribunals have had to adapt to the impact of the Covid-19 pandemic. With the help of amended court rules and the extensive use of technology, they have ensured that the vast majority of activity has been able to proceed effectively and efficiently. I take this opportunity to thank the legal profession, court staff and our judiciary, social workers and the police who provide order in our court buildings for all their efforts. We can all agree that it is because of their dedication and hard work that civil justice has managed to continue as well as it has during the public health pandemic.

All that does not mean that we want civil justice to remain as it is. We want to drive forward changes and improvements so that we have a modern civil justice system that works for the people of Scotland. Our manifesto sets out our ambition to increase the choice that people have in deciding how to resolve disputes. There is widespread evidence from across the world that disputes arising from a range of issues including debt, housing, consumer purchases, contractual matters and family problems can be resolved quickly, cheaply and more effectively for all parties by using alternative dispute resolution—ADR—methods, rather than going to court. The Scottish Government will work with stakeholders to expand the availability of mediation and arbitration services within the civil justice system and consult as appropriate to give our citizens, businesses and organisations access to flexible, affordable and less stressful means of settling those disputes, benefiting them and saving time in courts.

In line with the disclosure requirements on other senior participants in public life, including all of us, we will begin work to establish a judicial register of interests that will improve transparency and trust in our justice system as a whole.

Last session, the Scottish Government engaged with the Parliament, in particular the Delegated Powers and Law Reform Committee, to reconsider the criteria for Scottish Law Commission bills. Given that effort, we will over the coming session try to accelerate our implementation of SLC recommendations as set out in various reports. Reform of those areas will bring Scots law up to date so that it serves the people of Scotland.

Finally, on access to justice, we will reform the legal aid system to ensure that Scotland has a modern, flexible and user-focused service. The legal profession contributes to the social value of Scotland and helps to protect our human rights and freedoms. It plays a vital role in upholding the rule of law and providing access to justice. We will therefore continue to engage with the legal profession to consider how best to reform the regulation of legal services. Our manifesto sets out our priorities for reforming Scotland’s civil justice system over this parliamentary session. I look forward to working collaboratively with the members of the committee to ensure that we have a modern system that works for everyone.

The cabinet secretary would like to say a few words as well.

That issue has been in the news, particularly on the criminal side, because there is quite a backlog that needs to be cleared on the criminal side.

Things have not quite been the same on the civil side. Proceedings have continued throughout. Many of the adjustments that have been made have been enabled by court rules, although some have been made by legislation—including, obviously, Covid legislation. Sheriff courts reinstated business very quickly after the first lockdown and business continued through the pandemic. Often, that was conducted by telephone conferencing, but there is also a civil online service—I do not know whether the committee is familiar with that. The courts were able to use that to carry on. By the end of last year, all sheriff and civil courts were able to conduct proofs, debates and evidential and fatal accident inquiry hearings virtually, using their WebEx video platform.

There has been an impact. We think that business is down in general. There is no backlog, as such, in civil justice, but we think that there has been an impact and that it has reduced the amount of business that has gone through. I ask Neil Rennick to give a little more information.