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JC8

Justice Committee

Judiciary and Courts () Bill

Written submission from the 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 to make law of very considerable constitutional significance, which will place the relationship of the with the , 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 ’ 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 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 ; the senior Scottish Lord of Appeal in Ordinary; two judges of the of the other than the Lord President and the Lord Justice Clerk; two judges of the of the Court of Session; the Chairman of the ; the convenor of the Sheriffs Principal; two Sheriffs; a part-time ; 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

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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

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 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 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 , one 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

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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.

The Lord President has concerns about the workability of bringing the appointment of temporary judges who are not existing judicial office holders within the rem of the Board. In his view the Lord President, as the judge charged with the responsibility for the efficient disposal of the business of the supreme courts, is best placed to judge (a) what is required in terms of temporary judicial cover, and (b) who amongst eligible practitioners and shrieval office holders are most suited to being appointed as temporary judges. Furthermore the imposition of onerous application procedures such as are required by the Board in relation to other judicial offices is likely, in the Lord President’s view, to discourage a number of the most suitable candidates from applying for the office. Those procedures are also likely to be time consuming and therefore to make it less easy for unexpected pressures on the system to be met by the appointment of further temporary judges. The better course, it is suggested, is that the power to appoint temporary judges should be conferred on the Lord President — as is the proposed position with the appointment of retired judges.

Section 21 has the effect, in the Lord President’s view, of turning temporary judges into “part-time judges” of a character rather similar to that of the part- time sheriffs created by the Bail, Judicial Appointments etc. (Scotland) Act 2000. While the Lord President understands the reasons for section 21 of the Bifi, he is concerned to ensure that there remains an adequate facility for dealing with circumstances in which there is a genuine short term need for judges to be appointed on a temporary basis. Examples might be where a judge is unexpectedly struck down by a long term illness or is appointed to chair a public inquiry at relatively short notice. In the Lor4 President’s view it remains to be seen whether the new arrangements for temporary judges will enable the creation of a sufficiently large pool to enable that resource to be resilient enough to meet all needs for temporary judicial cover arising in such circumstances. He would therefore favour the retention of some form of mechanism whereby truly “temporary” appointments might speedily be made to cater for such events.

(c) Other matters

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The Lord President is broadly content with the arrangements, in section 18 and schedule 2, for the appointment of the Lord President and the Lord Justice Clerk. For similar reasons to those outlined above in relation to the composition of the Board, he would however prefer that the panel included a judicial majority or, at least, a judicial casting vote. It is noted that under the arrangements which apply to the appointment of the Lord Chief Justice of England and Wales and the Heads of the Divisions of the Senior Courts (sections 67 to 75 of the Constitutional Reform Act 2005) the judge who chairs the panel has a casting vote (see section 71(13)).

The Lord President is content with the proposal, given effect in section 2O of the Bill, whereby a does not require to have extended rights of audience in both the higher civil courts and the• higher criminal courts in order to be eligible for appointment as a judge of the Court of Session. He remains of the view, however, that substantial experience of pleading in the higher courts is a necessary criterion for appointment as such a judge.

Judicial conduct

(a) Complaints

In his responses to the two consultation exercises which informed the formulation of the Bill, the Lord President expressed himself to be opposed to the creation of a complaints system along the lines of that proposed in sections 26 to 32 of the Bill. In particular he did not see the need for a formal complaints system in relation to the judges of the Court of Session where the existing informal arrangements have worked satisfactorily over the years. In expressing that view the Lord President was mindful, amongst other things, of the fact that most of the complaints against the judiciary emanate from disappointed litigants and that formalising the complaints system might bring the risk of increasing substantially the number of such complaints. It is noteworthy that the financial memorandum estimates that the level of complaints is likely to double in consequence of the new complaints system (see paragraph 196). This increase in the level of complaints, and the increased formalisation of the system for dealing with them, will have implications for judicial if me and for public resources which should not be underestimated. One example which may be instructive is the experience of New South Wales. As at 2000, New South Wales, with a population of 5.8m, had a judicial complaints system which was supported by a staff of 28 and had an annual budget of $2.9m dollars (E1.2m).

If such a regime is to be enacted, the Lord President is of the view that the Bill takes the right approach by conferring the power to make detailed procedural rules upon him (section 26) and that these rules should be published. These steps would be consistent with international standards in this area. The Lord President is also of the view that the Bill takesthe right approach by conferring on him the power to imp disciplinary sanctions short of removal from office (section 27) and the power to suspend judicial office holders from office (section 32). So far as the proposal that there should be a Judicial Complaints Reviewer is concerned (sections 28 and 29), the Lord President can see the

5 JC8 force in the argument that some independent oversight of the handling of complaints might be appropriate to ensure that the system commands the necessary degree of public confidence. It is in his view consistent with the principle of judicial independence that the functions of the Reviewer are confined to ensuring that the relevant procedure is observed.

(b) Removal from office

The Lord President is content with the structure proposed for removal of judicial office holders from office.

Michael Anderson Legal Secretary to the Lord President

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