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The Lord President's Private Office JC8 Justice Committee Judiciary and Courts (Scotland) Bill Written submission from the Lord President The Committee has invited the Lord President to give oral evidence in relation to the Bill. The Lord President thought it might be of some assistance if he were to express his views on certain matters in writing in advance of giving oral evidence. The Lord President has already publicly welcomed the introduction of the Bill. At that time he described it as “an opportunity for the Scottish Parliament to make law of very considerable constitutional significance, which will place the relationship of the judiciary with the Scottish Government, and indeed with the Parliament itself, on a new footing.” The Judicial Council for Scotland Before commenting on the provisions of the Bill directly it may be helpful to provide some information about the Judicial Council for Scotland. The Committee wifi recall that as part of the original proposals for the Bill it was suggested that there should be a Judges’ Council comprised of members of each of the branches of the judiciary. It was originally envisaged that this might be a statutory body, but the Lord President felt that it was not necessary to proceed in that way. Instead the Judicial Council for Scotland was established on a non-statutory basis in early 2007. The purpose of the Judicial Council is to provide information and advice to the Lord President and the judiciary of Scotland on matters relevant to the administration of justice in Scotland. Its objectives include: to preserve the independence of the judiciary; to co-ordinate the views and actions of the judges to that end; to provide information and advice to the Lord President so that he may be aware of the views of the judiciary; and to deal with all matters of concern to the judiciary. The Council comprises the following members: the Lord President; the Lord Justice Clerk; the senior Scottish Lord of Appeal in Ordinary; two judges of the Inner House of the Court of Session other than the Lord President and the Lord Justice Clerk; two judges of the Outer House of the Court of Session; the Chairman of the Scottish Land Court; the convenor of the Sheriffs Principal; two Sheriffs; a part-time Sheriff; a member of the tribunal judiciary; and two Justices of the Peace. The establishment of the Judicial Council might usefully be thought of as a stepping stone to the unified judiciary which the Bill envisages. It is already examining certain issues, such as judicial training and welfare, and the need for a statement of judicial ethics on a judiciary-wide basis; the benefits of that approach are becoming quickly apparent. The Lord President has had the 1 JC8 opportunity to consult the Judicial Council in relation to the Bill and in a number of the matters mentioned below he speaks with its support. Guarantee of continued judicial independence The Lord President strongly supports Part 1 of the Bill (judicial independence) which, if enacted, would create for the first time in Scotland a statutory statement of the guarantee of judicial independence. He does so with the explicit backing of the Judicial Council. It is of central importance to a democratic society that there should be an independent judiciary and that the other branches of government should respect that independence. The Lord President sees Part 1 of the Bill as an important statement of that principle. While he does not envisage Part 1 becoming the subject of contested litigation in court, he sees the merit of it as a statutory statement of fundamental constitutional principle. Similar provisions for England and Wales are contained in the Constitutional Reform Act 2005. Head of the Scottish Judiciary The Lord President also strongly supports the proposals in Chapter 1 (Head of the Scottish Judiciary). These would make the Lord President the Head of the Scottish judiciary with a number of responsibilities for the judiciary and the courts as a whole. The Judicial Council also supports the Lord President in relation to this matter. These proposals will in the Lord President’s view bring many benefits for the administration of justice in Scotland. They will enable the Lord President to speak on behalf of the whole judiciary and thereby help the judiciary to play a full and co ordinated role in the development of proposals for improving the administration of justice. They will enable the matter of the efficient disposal of business in the Scottish courts to be addressed strategically in a way which takes account of the operation of the whole system rather than on a piecemeal basis; and which should therefore enable judicial resources to be directed to where they are needed. And they will enable matters of training, welfare and guidance of the judiciary to be given the appropriate level of priority and to be addressed consistently across the judiciary as a whole. It may also be possible to achieve economies of scale in relation to training and welfare programmes which are not possible under the present, fragmented arrangements. A unified judiciary will complement a unified Court Service. The Scottish Court Service Again with the backing of the Judicial Council, the Lord President strongly welcomes the proposals for new governance arrangements for the Scottish Court Service. The Lord President sees this partly as a matter of principle and partly as a matter of practical benefit. There has been increasing international recognition of the need to give the judiciary a degree of institutional autonomy as a means of protecting judicial independence. The proposal to make the Scottish Court Service a separatepart of the Scottish Administration is in line with that trerid. Hitherto there has always be risk, at least in terms of perception, that the executive could, through its control of the court service, 2 JC8 hamper the effective operation of the courts to its own ends. The proposal that a majority of the members of the Scottish Court Service are to be members of the judiciary would in the Lord President’s view enable the judiciary to bring to bear on the matter of the delivery of the essential administrative support for the courts their unrivalled knowledge and experience of the operation of the courts. This will ensure that the essential administrative support is truly focussed on the di administration of justice. The Lord President is of the view that the arrangements proposed by the Bill for the financing of the Scottish Court Service and for the accounting for its use of public funds resolve satisfactorily the potential for tension among the need for judicial independence, the need for political freedom to determine how to allocate limited public resources and the need for appropriate scrutiny of the consumption of those resources. In that regard the Lord President sees as particularly important section 1(2)( which makes it dear that Ministers must, in seeking to uphold the continued independence of the judiciary, have regard to the need for the judiciary to have the support necessary to enable them to carry out their functions. Judicial appointments (a) Composition of the Judicial Appointments Board As presently proposed the Judicial Appointments Board will comprise three judicial members (one judge, one sheriff principal and one sheriff), two legal members and five lay members (paragraphs 3 and 4 of schedule 1). The Lord President is of the view that the representation of the judiciary in this regard is inadequate. He is of the view that this composition of the Board fails to take adequate account of the value to be gained from the involvement in the recruitment process of judicial members whose experience of the very position which is being recruited for enables them to make an effective assessment of the candidates’ promise in that regard. The matter is particularly acute in relation to the recruitment of judges of the Court of Session. The Lord President suggests that where the Board is recruiting a judge of the Court of Session, there should be a minimum of two judges of the Court of Session involved in the process. He would also favour the addition of another sheriff. The Lord President is not in any event persuaded that paragraph 4(1) of schedule 1, which requires that the lay membership is equal to the total of the judicial and legal membership, is a manifestation of any particularly compelling constitutional principle. The Judicial Appointments Commission established under the Constitutional Reform Act 2005 has 15 members of whom seven are judicial, two legal and six lay (including the chair). The Northern Ireland Judicial Appointments Commission has 13 members of whom six are judicial, two are Legal and the remaining five lay. And that Commission is chaired by the Lord Chief Justice of Northern Ireland as the senior judicial member. The Lord President would also drawn the attention of the Committee to the recent UK Government consultation paper entitled The Governance of Britain: Judicial Appointments (CP25/07). Annex A to that 3 JC8 document sets out the arrangements for the making of judicial appointments in many other jurisdictions. It does not appear to indicate that an equal lay and legal split in a judicial appointments board or commission is a common feature of systems which have such a board or commission. (b) Appointment of temporary judges of the Court of Session Presently temporary judges are appointed by the Scottish Ministers, after consulting the Lord President, for such period as they consider appropriate. Section 10 of the Bill would bring the appointment of temporary judges who are not existing judicial office holders within the remit of the Board, and section 21 would make the appointment of a temporary judge endure for five years with automatic renewal in most circumstances.
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